Citation Nr: 1603177 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 08-16 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial rating greater than 10 percent for residuals of a left ankle sprain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served as a member of the Army Reserve from June 1983 to December 2004, with periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2006 and March 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board remanded the issue on appeal in December 2010, April 2013, and October 2014. It now returns for appellate review. The Veteran testified at a Board hearing before the undersigned in May 2014. A transcript is of record. The Veteran had previously testified before a different Veterans Law Judge (VLJ) in September 2010 in support of the claims on appeal, a transcript of which is of record. However, that VLJ has since retired. A service connection claim for migraine headaches, including as secondary to service-connected hypertension, was also on appeal before the Board and remanded for further development in October 2014. Service connection for migraine headaches has since been granted in a July 2015 rating decision. Accordingly, this claim is no longer on appeal before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). In a September 2015 appellate brief, the Veteran argued that a compensable rating is warranted for her service-connected migraine headache disorder. As stated in the preceding paragraph, the Board no longer has jurisdiction of this claim by virtue of the grant of service connection; the Veteran must separately perfect an appeal as to the initial rating assigned this disability for the Board to take jurisdiction of this issue on the merits. See Grantham, 114 F.3d at 1158-59; see also 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2015) (setting forth requirements for perfecting an appeal to the Board). Accordingly, the issue of entitlement to an initial compensable rating for migraine headaches has been raised by the Veteran in the September 2015 appellant's brief, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. See 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board sincerely regrets the delay, the issue on appeal must be remanded again for further action to ensure it is afforded every due consideration. The Veteran underwent a VA examination of the left ankle in October 2015, a report of which is of record. The examination occurred prior to recertification of the appeal and transfer of the claims file back to the Board. However, the AOJ did not readjudicate the evaluation of the left ankle disability or issue a supplemental statement of the case (SSOC) following this examination. Accordingly, remand is required for the AOJ to accomplish these actions. See 38 C.F.R. §§ 19.31(b), 19.37(a) (2015). Further, the October 2015 and April 2015 VA examination reports are not sufficient to make a fully informed decision, and therefore clarification is required. See 38 C.F.R. § 4.2 (2015). Both examination reports indicate that the examiner suspected instability or dislocation of the left ankle. However, the examination reports reflect that objective testing of the ankle was negative for laxity when compared with the right ankle, and there are no other clinical findings of instability or dislocation in the record during the pendency of this claim. No explanation was provided for this finding. While the Veteran and witnesses have occasionally attributed a fall that occurred a few years ago to twisting of the left ankle, they also attributed the fall to buckling of the leg due to a low back condition. Therefore, further explanation as to the basis for suspecting instability or dislocation of the left ankle, and its nature or severity, is required. See id. The October 2015 VA examiner must also clarify whether the Veteran has ankylosis of the left ankle. The October 2015 VA examination report states that ankylosis of the left ankle and "adhesions" contributed to additional disability. Yet the same report later states that ankylosis was not present, and there are no other findings of ankylosis or adhesions in the record. Reconciliation of these findings is required. Finally, when the October 2015 VA examiner was asked to comment on which range of motion exhibited pain on testing, the examiner responded that it was dorsiflexion. However, the actual range-of-motion findings are dorsiflexion from 0 to 20 degrees, which is normal, and plantar flexion from 0 to 30 degrees, which is less than normal (normal being from 0 to 45 degrees). It is not clear why the examiner identified pain on dorsiflexion rather than plantar flexion when testing showed that the former was normal while the latter was limited by 15 degrees. The examiner must clarify this conflict in the report so that the Board can determine whether dorsiflexion is also affected. Accordingly, the case is REMANDED for the following action: 1. Add to the claims file all VA treatment records from the Boston Healthcare System dated since October 2015. 2. Return the claims file to the October 2015 VA examiner for an addendum clarifying certain findings in the October 2015 examination report, as discussed below. If an addendum cannot be obtained from this examiner within a reasonable time frame, or if further examination is required, then the Veteran should be scheduled for a new examination. * Instability/dislocation: The examiner must explain why instability or dislocation of the left ankle is suspected when there were no objective findings of such on examination (or elsewhere in the record), and when testing showed no laxity when compared with the other side. The examiner must also identify the nature (i.e. is it instability or dislocation, how is it manifested and what causes it) and severity of this finding. * Ankylosis and adhesions: The examiner must clarify whether the Veteran has ankylosis of the left ankle and/or adhesions. The October 2015 examination report states that there was additional disability of the ankle due to ankylosis and "adhesions." However, the examiner later indicated in the report that there was no ankylosis of the left ankle, and there are no other findings of ankylosis or adhesions in the record. * Range of motion findings: The October 2015 VA examination report states that the Veteran had pain with dorsiflexion only, yet the actual range-of-motion findings show that dorsiflexion was normal, while plantar flexion was limited to 30 degrees (normal being to 45 degrees). The examiner must reconcile these findings by clarifying whether it was on plantar flexion that pain was exhibited (i.e. dorsiflexion was simply entered in error), or whether dorsiflexion ROM testing also produced pain. 3. Then, review the claims file and ensure that all requested development actions have been completed in full. If the VA examination report does not adequately respond to the above remand directives, it must be returned to the examiner for corrective action. 4. Finally, after completing any other development that may be indicated, readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and her representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 2014). _________________________________________________ P. M. DILORENZO 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).