Citation Nr: 1601772 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 11-06 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a compensable initial rating for right ankle trimalleolar fracture with arthrodesis. REPRESENTATION Appellant represented by: Jeany Mark, Attorney ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran served in the United States Army Reserve and had active duty for training from October 5 to October 22, 1979. As the Veteran has been service-connected for a disability incurred in or aggravated by active duty for training, the statutory definition of "veteran" applies in this case. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). This matter is before the Board of Veterans Appeals (Board) on appeal of a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland. In December 2015, the Veteran's attorney submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) review in accordance with 38 C.F.R. § 20.1304(c) (2015). The evidence is accepted for inclusion in the record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The June 2008 rating decision on appeal awarded service connection for right ankle trimalleolar fracture with arthrodesis and assigned a noncompensable initial rating effective January 14, 1999. The text of the June 2008 rating decision indicated that a noncompensable initial rating had been assigned for the service-connected right ankle disability as only edema of the right ankle was shown on separation from service, and that the current "significant problems with the right ankle," namely distal tibial fracture with tibial plafond fracture, were the result of a post service on-the-job injury for which she has been awarded Federal Worker's Compensation benefits. No such distinction was noted in the June 2008 rating decision characterization of the service-connected right ankle disability as "right ankle trimalleolar fracture with arthrodesis." In a timely notice of disagreement, the Veteran requested a higher rating for her service-connected right ankle disability. The Statement of the Case indicated that payment for the service-connected right ankle disability could not be made because of VA regulations. Specifically, a VA regulation provides that where a person is entitled to compensation from the Office of Workers' Compensation Programs, under the Federal Employees Compensation Act, based upon civilian employment and is also entitled to compensation for the same disability under laws administered by VA, an award cannot be approved for payment of compensation concurrently with compensation from the Office of Workers' Compensation programs. See 38 C.F.R. § 3.708(b)(1) (2015) (emphasis added). Here, the evidence indicates that the Veteran received Workers' Compensation benefits for right ankle fracture due to an August 1988 post-service injury when the Veteran was working for the United States Postal Service. However, the Workers' Compensation records are not associated with the claims folder. Without such records, the Board cannot make a determination as to what specific disability the Veteran received Worker's Compensation benefits. In addition, statements from the Veteran's attorney appear to raise the issue of entitlement to service connection for an additional right ankle disability, separate and distinct from the service-connected right ankle trimalleolar fracture with arthrodesis. In this respect, the service medical treatment records show complaints of edema with an X-ray report, interpreted as reflecting narrowing of joint spaces. Post-service, an August 2015 private medical opinion suggested that the Veteran had a service-incurred right ankle disability consisting of thyroid rheumatoid disease. At this time, it is unclear as to whether there is an additional separate right ankle disability other than the service-connected right ankle trimalleolar fracture with arthrodesis. The AOJ must adjudicate the issue of entitlement to service connection for right ankle disability other than right ankle trimalleolar fracture with arthrodesis. The issue is inextricably intertwined with the issue of entitlement to a compensable initial rating for service-connected right ankle trimalleolar fracture with arthrodesis. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). In addition, review of the record shows that the Veteran receives disability benefits from the Social Security Administration. The identified records must be requested. The AOJ must also make second requests, or obtain new release forms, related to records from Katz, M.D., and Denefield, M.D. The Veteran should be asked to submit or identify any other relevant medical treatment for the right ankle disability that has not already been associated with the claims folder. The Veteran's attorney also requested a new VA medical examination to determine whether the Veteran has a right ankle disability other than the service-connected right ankle trimalleolar fracture with arthrodesis. The Board finds that a new VA medical examination is required to resolve the question as to whether the Veteran has a right ankle disability, other than right ankle trimalleolar fracture with arthrodesis, related to service. In addition, the examiner must provide all relevant findings as to the service-connected right ankle trimalleolar fracture with arthrodesis. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Request records from the Social Security Administration. 2. Make second requests for private medical treatment records from Dr. Katz and Dr. Denefield as previously identified by the Veteran in release forms dated in 2010. If necessary, ask the Veteran to complete and submit new release forms. In addition, ask the Veteran to identify/submit any other relevant treatment records related to her right ankle disability. 3. Ask the Veteran to complete a release form to obtain records related to her claim for Workers' Compensation for right ankle disability. Thereafter, request any identified records. 4. After the above development and any other necessary development has been completed, schedule the Veteran for a VA medical examination for her right ankle disability. The claims folder must be made available for review and a notation that a review was made must be included in the examination report. Any indicated tests and studies must be completed. Following examination of the Veteran and review of the claims folder, the examiner must address the following: a. Discuss whether the Veteran has a right ankle disability, other than the service-connected right ankle trimalleolar fracture with arthrodesis. The examiner must address the medical evidence, to include the service medical treatment records, and the private medical opinions, which include diagnoses of thyroid rheumatoid disease. b. If the Veteran has a right ankle disability other than right ankle trimalleolar fracture with arthrodesis, express an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the disability was incurred in the Veteran's active duty for training. c. Include all findings and manifestations related to the right ankle trimalleolar fracture with arthrodesis, to include range of motion findings. If a disability other than right ankle trimalleolar fracture with arthrodesis is present, the examiner should separate the symptoms and manifestations attributable to the service-connected right ankle trimalleolar fracture with arthrodesis and any symptoms and manifestations attributable to a separate right ankle disability. Rationale must be provided for any opinion reached. 5. Adjudicate the issue of entitlement to service connection for right ankle disability, other than service-connected right ankle trimalleolar fracture with arthrodesis. Notice of the determination and the Veteran's appellate rights must be issued to the Veteran and her representative. Only if a timely notice of disagreement is received, and after issuance of a statement of the case, a timely substantive appeal is received as to the matter, should the issue be forwarded to the Board for appellate consideration. 6. After completing the above development and any other development deemed necessary, readjudicate the right ankle fracture initial rating issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and her attorney, and allow for an adequate period of time for response. Thereafter, return the appeal to the Board for review, if in order. 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 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 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).