Citation Nr: 1338713 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-15 214A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating higher than 20 percent for residuals of a left ankle injury, status post arthroscopy, to include shin splints, osteoarthritis with chronic tendinopathy, and ankle instability. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1984 to January 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal of a Decision Review Officer decision in August 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection for left talar dome osteochondral lesion with tibiotalar osteophytes and assigned a noncompensable rating, effective in June 2009. The Veteran appealed for a higher rating. Then, in a November 2011 rating decision, the RO granted a 10 percent rating for the left talar dome osteochondral lesion with tibiotalar osteophytes with residual scar [scar disability was added in light of the Veteran's arthroscopic surgery during service], effective in June 2009. The Veteran continued her appeal for a higher rating. Subsequently, in an April 2013 Decision Review Officer decision, the RO granted a 20 percent rating for the Veteran's left ankle disability, effective in June 2009. The RO indicated that its decision was a complete grant of benefits with regard to the Veteran's appeal, because it was the highest schedular rating available for the disability and because the Veteran had indicated she was seeking only a 20 percent rating. Therefore, no further action was undertaken. The Board, however, finds not only that a higher schedular rating is possible (e.g., under criteria for ankle ankylosis), but also that in a September 2010 substantive appeal statement, the Veteran's attorney representative argued that "a rating of at least 20 percent" should be assigned for the ankle and alternatively a 30 percent rating under Diagnostic Code 5262 was warranted. Further, in a statement received in May 2013, the Veteran's representative requested that the RO not end the appeal, asserting additional symptomatology in the form of shin splints associated with the left ankle. It is noted that a substantive appeal may be withdrawn in writing, by the Veteran or by her authorized representative, at any time before the Board promulgates a decision, and that except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. §§ 20.202, 20.204. In light of the foregoing regulations regarding appeal withdrawals and the assertions of the Veteran's representative, none of which express intent to withdraw the left ankle appeal, the Board finds that the appeal for a higher rating for the left ankle disability has not been withdrawn and that the Board has jurisdiction to consider its merits. The Board also notes that it has re-styled the issue on appeal as one of residuals of a left ankle injury, status post arthroscopy, to include shin splints, osteoarthritis with chronic tendinopathy, and ankle instability. Such characterization takes into account the clinical findings on the most recent VA examination. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND In a May 2013 statement, the Veteran's representative argued that it was clear from a February 2013 VA examination, which evaluated the current severity of the Veteran's service-connected left ankle disability, that there was additional symptomatology that had not been addressed by the RO. He indicated that the left ankle disability had progressed to the point of causing shin splints. He stated that "this part of the disability" was identified but "not yet compensated." Of record are VA examination reports of February 2013, wherein the diagnoses included shin splints and the examiner stated that the shin splints (along with osteoarthritis with chronic tendinopathy and ankle instability) were a progression/complication of the "ankle fracture, bilateral malleolar fractures." As asserted by the Veteran's representative, the medical opinion disclosed additional symptomatology attributable to the left ankle disability, but such findings were not all considered by the RO. For example, in the April 2013 RO decision that granted an initial 20 percent rating for the left ankle, there was no mention of the Veteran's shin splints, and significantly the RO has not considered whether a separate rating was appropriate for the additional symptomatology. Thus, the case is returned to the RO for its initial consideration of the additional disability identified in the VA examination report. Accordingly, the case is REMANDED for the following action: Adjudicate the claim for an initial rating higher than 20 percent for residuals of a left ankle injury, status post arthroscopy, to include shin splints, osteoarthritis with chronic tendinopathy, and ankle instability, with specific consideration as to whether a separate rating (for example, under criteria found in 38 C.F.R. § 4.71a, Diagnostic Code 5262) is appropriate for the additional symptomatology identified by the February 2013 VA examiner but not previously taken into account by the RO. If the RO deems the VA examination findings as to the additional symptomatology inadequate for evaluation purposes, then it should obtain another VA examination. Thereafter, if the benefit sought is denied, furnish the Veteran and her representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2013).