Citation Nr: 1416228	
Decision Date: 04/11/14    Archive Date: 04/24/14

DOCKET NO.  10-47 649	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to a rating in excess of 20 percent for service-connected right ankle fracture with residuals of osteoarthritis.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Megan C. Kral, Associate Counsel





INTRODUCTION

The appellant is a Veteran who served on active duty from September 1986 to September 1990 and from February 1991 to March 1991.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Buffalo, New York Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for the disability and assigned a 10 percent rating.  A subsequent (October 2010) rating decision increased the rating to 20 percent. 

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action on his part is required.


REMAND

The record reflects the Veteran received treatment for his right ankle disability from the VA medical centers in Rochester and Canandaigua.  Records of this treatment are not associated with the file.  As these records are likely to contain pertinent information, and VA records are constructively of record, they must be obtained.

Moreover, the most recent VA examination to evaluate the Veteran's disability was conducted in April 2010, four years ago.  Since then, the Veteran asserts the pain in his right leg has increased and he continues to stumble and fall while walking.  (See VA Form 9).  In light of the length of the intervening period since the April 2010 examination and the allegation of worsening, a contemporaneous examination is necessary.  

Accordingly, the case is REMANDED for the following action:

1. The RO should obtain updated records of all VA treatment the Veteran has received for his right ankle/leg since June 2008, specifically from the Rochester and Canandaigua VA medical centers.
2. After the development sought above is completed, the RO should arrange for an orthopedic examination of the Veteran to determine the current nature and severity of his service connected right ankle disability. The Veteran's VA medical record must be reviewed by the examiner in conjunction with the examination.  All indicated studies must be completed, and should specifically include range of motion studies, active and passive, of the right ankle.  The examiner must note any additional functional limitations due to such factors as pain, use, etc. 

The examiner must explain the rationale for all opinions. 

3. The RO should then review the record and readjudicate this claim.  If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

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 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).



_________________________________________________
ROBERT E. SULLIVAN
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).