Citation Nr: 1339714 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-25 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for degenerative arthrosis of the left ankle, residuals of reconstructive surgery, currently rated as 20 percent disabling. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from July 1993 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina. In June 2012, while sitting at the RO, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims folder. At the time of the hearing, the Veteran submitted a duplicative copy of a VA Medical Center (VAMC) outpatient treatment record, dated in February 2011, and waived initial RO consideration. See 38 C.F.R. § 20.1304 (c )(2013). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran was last afforded a VA examination which addressed his service-connected left ankle disability in December 2003, approximately 10 years ago. At that time, he had 20 degrees of inversion, 0 degrees of eversion, dorsiflexion was to 0 degrees with pain, and plantar flexion was to 25 degrees. During the June 2012 videoconference hearing, the Veteran submitted a February 2011 VAMC outpatient treatment record which showed evaluation of his left ankle. At that time, although the Veteran's plantar flexion of the left ankle joint had remained the same and was still to 25 degrees, dorsiflexion had clearly worsened: there was minus 15 degrees of ankle dorsiflexion at the left ankle joint and the Veteran could not dorsiflex his foot to 0 degrees. In addition, the Veteran testified that due to his service-connected left ankle disability, he had trouble walking on uneven grounds and experienced limited mobility. The Veteran indicated that he wore an ankle brace daily. He further noted that his left ankle would give out and that he had fallen down due to his left ankle. The Veteran reported that he worked as a firefighter and that he had to miss work due to his left ankle pain. Thus, in light of the foregoing and the Veteran's testimony regarding the worsening of his left ankle symptomatology, the Board finds that a new, more contemporaneous examination is needed prior to a final adjudication of the Veteran's current claim. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board further notes that in the videoconference hearing, the Veteran testified that he was receiving treatment for his service-connected left ankle disability at the Columbia VAMC, and that the VAMC referred him to the Harper's Clinic in Spartanburg, South Carolina. According to the Veteran, he also received treatment at the Steadman Hawkins Clinic. In this regard, while the evidence of record includes outpatient treatment records from the Columbia VAMC, to include the Harper's Clinic records, there are no records past May 2011. In addition, while the evidence of record includes outpatient treatment records from the Steadman Hawkins Clinic, there are no records past August 2010. In light of the above, inasmuch as the VA is on notice of the existence of additional records, these records should be obtained prior to any further appellate review of this case. Accordingly, the case is REMANDED for the following action: 1. All private medical records from the Steadman Hawkins Clinic pertaining to the treatment of the Veteran since August 2010 should be requested and associated with the claims folder. 2. Request copies of the outpatient treatment records from the Columbia VAMC, to include the Harper's Clinic, from May 2011 to the present. All records received should be associated with the claims file. 3. After any additional evidence has been obtained and added to the record, the RO must make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA orthopedic examination in order to determine the current severity of his service-connected degenerative arthrosis of the left ankle. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must review all of the evidence of record. All necessary special studies or tests are to be accomplished, to include x-rays if deemed necessary by the examiner. The examiner must conduct complete range of motion studies and describe all current left ankle symptomatology. With respect to the Veteran's left ankle, the examiner must indicate whether there is ankylosis present, and if so, whether such is at plantar flexion less than 30 degrees; plantar flexion between 30 and 40 degrees, or dorsiflexion between 0 and 10 degrees; or in plantar flexion at more than 40 degrees, or dorsiflexion at more than 10 degrees with abduction, adduction, inversion or eversion deformity. The examiner must also indicate whether the Veteran has ankylosis of the subastragalar or tarsal joint (either in poor weight-bearing position, or in good weight-bearing position) or malunion of the os calcis or astragalus, and if so, whether it is best described as moderate or marked. The examiner must further indicate whether there is any evidence of astragalectomy. In addition, the examiner must render an opinion as to the extent to which the Veteran experiences weakness, excess fatigability, incoordination, or pain in his left ankle due to repeated use or flare-ups, and must equate these problems to additional loss in range of motion beyond that shown clinically. If the loss of motion manifested on examination represents maximum disability, or there are no functional limitations shown, the examiner must so state. A complete rationale for all opinions expressed must be provided. 4. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issue on appeal. If such action does not grant the benefit claimed, the RO should provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The Veteran 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. 2013). _________________________________________________ P.M. DILORENZO 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) (2013).