Citation Nr: 1342815	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  09-18 626	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an effective date earlier than August 3, 2005 for the grant of service connection for left ankle degenerative joint disease.

2.  Entitlement to a higher initial rating for left ankle degenerative joint disease, currently rated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant, spouse



ATTORNEY FOR THE BOARD

M. Prem, Counsel


INTRODUCTION

The Veteran served on active duty from July 1976 to July 1980.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for left ankle degenerative joint disease, evaluated as 10 percent disabling, effective August 3, 2005.

The Veteran presented testimony at a videoconference hearing before the undersigned in May 2013.  A transcript of the hearing is associated with the Veteran's claims folder. 

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


REMAND

The Veteran's claim for service connection for a left ankle disability was initially denied in November 1980 rating decision.  The Veteran submitted a notice of disagreement, but the appeal was closed after he failed to submit a timely substantive appeal.  At the Board hearing, the Veteran alleged that there was clear and unmistakable error (CUE) in the November 1980 decision.  This question is inextricably intertwined with the effective date for the grant of service connection, but the Board cannot consider this question in the first instance.  Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006).  The RO has not considered whether there was CUE in the 1980 decision.

At the Veteran's July 2013 Board hearing, he testified that his left ankle disability has become more severe since the most recent examination.  The Board finds that a new VA examination is warranted for the purpose of determining the current severity of the Veteran's left ankle disability.  

Accordingly, the case is REMANDED for the following action:

1.  The agency of original jurisdiction should adjudicate whether there was CUE in the November 1980 decision that denied entitlement to service connection for a left ankle disability.

2.  The AOJ should schedule the Veteran for a VA examination to determine the current severity of his left ankle disability.  The claims file should be reviewed by the examiner.  

Range of motion testing should be conducted, and the examiner should provide an opinion as to the severity of the limitation of motion and the severity of any associated foot disability.

The examiner should report (in degrees) any additional limitation of motion due to weakness, fatigue, incoordination, pain, or flare-ups. 

The examiner is advised that the Veteran is competent to report limitation during flare-ups.  

3.  If the claims on appeal are not fully granted, the AOJ should issue a supplemental statement of the case; and then returning the record 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).



______________________________________________
Mark D. Hindin
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 Court.  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).