Citation Nr: 1431237 Decision Date: 07/11/14 Archive Date: 07/15/14 DOCKET NO. 11-00 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased rating for residuals of right calcaneal and fibula stress fractures, currently evaluated as 20 percent disabling. 2. Entitlement to an increased initial rating for left foot hallux valgus deformity with second and third hammertoes, currently evaluated as 10 percent disabling. 3. Entitlement to a higher initial rating for left ankle strain, evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel REMAND The Veteran served on active duty from March 1990 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009, December 2009, and September 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 2014, the Veteran testified before the undersigned at the RO in Buffalo. A transcript of that proceeding is associated with the Veteran's electronic (Virtual VA) claims file. With regard to the issues of higher ratings for a left ankle strain and left foot hallux valgus deformity with second and third hammertoes, the Veteran was scheduled for VA examinations to determine the severity of those disabilities. At his Board hearing, the Veteran reported under oath that he never received notice that examinations were scheduled and that is why he failed to report for them. See Hearing Transcript at pg. 9. As such, the Veteran should be afforded new examinations to determine the severity of his service-connected disabilities. See 38 C.F.R. § 3.655(a). With regard to the issue of an increased rating for right calcaneal and fibula stress fractures, the Veteran was last provided a VA examination in May 2009. Given that the examination was provided more than five years ago, the findings from that examination likely do not reflect the current severity of the Veteran's service-connected disability. As such, a new examination should be conducted to ascertain the current level of severity. Additionally, at his Board hearing, the Veteran testified that he applied for Social Security Administration (SSA) benefits about two to three years ago. See Hearing Transcript at pg. 17. Given that SSA may possess records relevant to the issues on appeal, an effort to obtain those records must be undertaken on remand. The Board notes that once VA is put on notice that the Veteran has applied for SSA benefits, VA has a duty to obtain the records associated with that decision. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Finally, it appears that there may be outstanding VA treatment records relating to the disabilities on appeal. A review of the Veteran's claims file reveals that the Veteran has received treatment from the Buffalo VA Medical Center (VAMC), the Erie VAMC, and the Dunkirk Community Based Outpatient Clinic (CBOC). On remand, all outstanding VA treatment records must be obtained and associated with the Veteran's claims file. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be relevant to the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those records with the Veteran's claims file. 2. Any medical or other records relied upon by the SSA in deciding a claim for disability benefits must be sought. The procedures set forth in 38 C.F.R. § 3.159(c) (2013) regarding requesting records from Federal facilities must be followed. All records and/or responses received must be associated with the claims file. If any records sought are determined to be unavailable, the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2013). 3. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his right calcaneal and fibula stress fractures, left foot hallux valgus deformity with second and third hammertoes, and left ankle strain. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report(s) to be associated with the claims file. All pertinent manifestations associated with right calcaneal and fibula stress fractures, left foot hallux valgus deformity with second and third hammertoes, and left ankle strain should be annotated in the examination report. Specifically, the examiner should undertake range-of-motion studies and comment on the degree of disability due to functional losses such as pain and weakness. Functional losses should be equated to additional loss of motion (beyond that shown clinically). A complete rationale should be given for all opinions and conclusions expressed. a. For the right calcaneal and fibula stress fractures, the examiner should note whether range of right ankle motion is marked or moderate. Range of motion should be reported with functional losses addressed. b. For left foot hallux valgus deformity with second and third hammertoes, the examiner should elicit information as the symptomatology associated with hallux valgus. It should be specifically noted whether hallux valgus is disabling to the point that it equates to amputation of the great toe, or whether there has been surgery with resection of the metatarsal head. c. For left ankle strain, the examiner should note whether range of left ankle motion is marked or moderate. Range of motion should be reported with functional losses addressed. d. The examiner should discuss the functional impacts of each disability. 4. Thereafter, re-adjudicate the issues on appeal. If any sought-after benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond. The case should thereafter be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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. 2013). ________________________________ MARK F. HALSEY 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 your appeal. 38 C.F.R. § 20.1100(b) (2013).