Citation Nr: 1400570 Decision Date: 01/07/14 Archive Date: 01/23/14 DOCKET NO. 08-06 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a disability rating in excess of 20 percent for arthritis due to trauma, limited motion, right ankle (hereinafter "right ankle disability"). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In March 2013, the Veteran testified before the undersigned at a Travel Board hearing. A transcript of the hearing is associated with the Veteran's claims file. Subsequently, the Board remanded this claim for further development in June 2013. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 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 Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's claim can be adjudicated. In June 2013, the Board remanded the Veteran's claim for an adequate VA examination. In pertinent part, the Board found that the prior October 2011 VA contract examination was inadequate because it did not address whether there was impairment of the tibia and fibula. In addition, during the Veteran's March 2013 Travel Board hearing, the Veteran reported that his right ankle disorder had increased in severity since the October 2011VA contract examination. In September 2013, the Veteran underwent another VA examination. However, that examiner did not address all the medical questions the Board requested. Specifically, the VA examiner did not provide a medical opinion as to whether there was an impairment of the tibia and fibula. In addition, the examiner did not comment on the Veteran's allegations of an increase in severity of the right ankle disorder since the October 2011 VA contract examination. Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, a remand is necessary in order to obtain an addendum opinion that is adequate for adjudication purposes. In this regard, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The agency of original jurisdiction last associated with the Veteran's claims file records of his treatment at the West LA VA Medical Center in July 2013. On remand, efforts should be made to obtain records of any relevant VA treatment he may have undergone since that time, in order to ensure that his claim is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the West LA VA Medical Center since July 2013, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 2. After the foregoing development has been completed to the extent possible, the Veteran should be scheduled for a VA examination to evaluate the severity of his right ankle disability. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner must address the following in the examination report and explain the basis for his or her findings: (a) Whether there is nonunion of the right tibia and fibula with loose motion, requiring a brace; and (b) Whether there is malunion of the right tibia and fibula, with either marked, moderate, or slight knee or ankle disability. . Furthermore, the examiner should comment on the Veteran's allegations of an increase in severity of his right ankle disorder since the October 2011 VA contract examination, specifically as it pertained to walking as well as the February 2013 statement from a VA physical therapist wherein she noted that the Veteran had 0 degrees of dorsiflexion and 5 degrees of plantar flexion which is much worse when compared to the October 2011 VA contract examination findings of 15 degrees of dorsiflexion and 40 degrees of plantar flexion. 3. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished with an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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 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). _________________________________________________ MARJORIE A. AUER 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).