Citation Nr: 1332484 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-28 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an increased evaluation for service-connected fracture of the left ankle with non-union fibula and chronic osteomyelitis, assigned a 30 percent evaluation prior to May 18, 2010 and a 30 percent evaluation beginning August 1, 2010, with a 100 percent evaluation from May 18, 2010 to August 1, 2010 (with previous evaluation also assigned but not pertinent to this appeal). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to August 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which continued a 30 percent evaluation. During the pendency of this appeal, the Veteran received a 100 percent evaluation from May 18, 2010 to August 1, 2010 due to surgical treatment necessitating convalescence. In June 2013, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. In June 2013, the Veteran and his representative submitted additional medical evidence to the Board with a waiver of initial RO jurisdiction. The Board accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A May 2006 statement indicates that the Veteran had a possible claim with the Social Security Administration (SSA). As it is unclear whether disability benefits were granted by the SSA or for which disability, the Board cannot exclude the possibility that the disability addressed on appeal is also referenced in the corresponding medical records. See 38 C.F.R. § 3.159(c)(2); see also Baker v. West, 11 Vet. App. 163, 139 (1998) (VA's duty to assist includes obtaining SSA records when the veteran reports receiving SSA disability benefits, as such records may contain relevant evidence). VA must make a reasonable effort to obtain relevant records, which include the Veteran's SSA records. But see Golz v. Shinseki, No. 2009-7039 (Fed. Cir. Jan. 4, 2010). As it is unclear whether SSA records are relevant, they should be obtained. The Veteran filed his most recent claim for a higher evaluation for his ankle disability in October 2007. During the pendency of the appeal and following the January 2013 VA examination, the Veteran fractured his left ankle. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). A June 2013 VA treatment records notes that the Veteran fracture his left ankle noting an avulsion fracture of the medial malleolus. Furthermore, the Veteran testified during the June 2013 hearing that his ankle was worse since the January 2013 VA examination. He explained that he would not know if the recent fracture to his left ankle would decrease his range of motion until it had time to heal. Given the evidence of injury and worsening since the last examination, a new examination is needed. In addition, the Board finds the January 2013 examination inadequate. The examiner did not answer question 4 (a) and 4 (b) regarding degrees of right ankle plantar flexion and dorsiflexion. Under 38 C.F.R. 4.59, the opposite undamaged joint should be tested if possible. Also, the examination results appear to contradict each other. In question 4, the examiner provided degrees of motion of the Veteran's left ankle but in question 10, the examiner noted that the Veteran had ankylosis of the ankle. The examiner also noted that the Veteran had ankylosis of the left ankle with abduction, adduction, inversion or eversion deformity. Later in the examination report, the examiner explained that the Veteran's left ankle had some movement that is less than normal. Although fused, per x-ray report, the examiner explained that his ankle was not ankylosed as there was still some modest motion of the foot. When the case is returned to the examiner, the examiner should clarify whether the examiner considers the left ankle to be ankylosed. In other words, is the Veteran's range of motion so limited, it should be considered ankylosed. Accordingly, the case is REMANDED for the following action: 1. Contact SSA and obtain any medical documentation corresponding to the Veteran's application for disability benefits, if any. All records obtained pursuant to this request must be included in the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file. 2. Work with the Veteran to schedule him for a new VA examination when it is determined that his recent left ankle fracture has healed. Schedule the examination with the examiner who conducted the January 2013 examination, if possible. If the January 2013 examiner is not available, another physician should conduct the examination. After conducting a physical examination to determine the current severity of his left ankle disability, the examiner should be asked to complete the entire examination questionnaire, including question pertaining to the Veteran's right ankle. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims folder must be provided to the examiner for review in conjunction with the examination. The examination report should specifically state the degree of disability present in the Veteran's left ankle and his current range of motion, as well as identify any objective evidence of pain. Any other abnormalities, including ankylosis, resulting from the service-connected left ankle disability should be discussed. The extent of any weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner is asked to opine as to whether any functional impairment demonstrated is analogous to ankylosis of the joint. If the examiner finds that there is ankylosis of the left ankle, the examiner should note whether there is plantar flexion more than 40 degrees, or in dorsiflexion at more than 10 degrees or there is abduction, adduction, inversion or eversion deformity. The examiner should also comment as to the impact of the Veteran's service-connected residuals of a left ankle disability on his daily activities and his ability to maintain employment. All opinions must be accompanied by an explanation of the underlying reasons for the conclusion. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Following the completion of the above-requested development, readjudicate the claim. If the claim is not granted in full, he and his representative must be provided a supplemental statement of the case and an opportunity to respond. Thereafter, the case should be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).