Citation Nr: 1605595 Decision Date: 02/12/16 Archive Date: 02/18/16 DOCKET NO. 12-26 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating higher than 10 percent for left ankle tendonitis with traumatic arthritis. 2. Entitlement to a rating higher than 10 percent for residuals of a right ankle fracture with traumatic arthritis. ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1977 and from July 1977 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was scheduled for a hearing before a Veterans Law Judge at the RO in March 2015 but cancelled the hearing approximately two months prior to the proceedings. This appeal was processed using the Veterans Benefits Management System (VBMS). Records in the Virtual VA paperless claims processing system also have been reviewed and considered. This appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran was last afforded a VA examination of his ankles in March 2013. Thereafter, in September 2014, he contended that physician assistants conducted the June 2012 and March 2013 VA examinations, that neither of them used a goniometer, and that their findings were inconsistent with the findings of a private examiner who did use a goniometer. Although the examination reports show that both examiners were instructed to use a goniometer, there is no reason to doubt the credibility of the Veteran's statements that they did not use the device during the actual examinations. VA regulations provide that a goniometer is indispensable in measuring limitation of motion. See 38 C.F.R. § 4.46. Further, in the August 2014 Report of General Information it was noted that the Veteran felt that his bilateral ankle disability was worse than evaluated. As the most recent findings are nearly three years old, the Board finds that a current examination is necessary. Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377 (1994) (determining that the Board should have ordered a contemporaneous examination of the veteran because a 23-month-old examination was too remote in time to support adequately the decision in an appeal for an increased rating). Lastly, and prior to obtaining any opinion, the Veteran's assistance should be obtained to ensure that copies of any outstanding records of pertinent medical treatment are identified and added to his claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Afterwards, schedule the Veteran for a VA examination with a physician, to the extent possible, to determine the current nature and extent of the service-connected left ankle tendonitis with traumatic arthritis and the service-connected residuals of a right ankle fracture with traumatic arthritis. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All indicated testing, including X-rays, should be conducted. Range of motion tests must be conducted using a goniometer and documentation of the use of the goniometer must be included in the examination report. Following an interview with, and examination of, the Veteran, the examiner should describe in detail all current manifestations of the service-connected left ankle tendonitis with traumatic arthritis and the service-connected residuals of a right ankle fracture with traumatic arthritis, to include: a.) any ankylosis and limitation of motion (dorsiflexion and plantar flexion) of these joints. The examiner should address any functional loss due to pain or painful motion as well as weakness, excess fatigability, incoordination, or pain on movement, swelling or atrophy-as well as the point pain sets. Any additional functional loss should be expressed in terms of the degree of additional limitation of motion. The examiner should also address whether there is additional loss of motion associated with flare-ups or on repetitive use. b.) the presence or absence of malunion of the os calcis or astragalus-including any deformity. c.) any residual scars-including the severity of each scar, including its size; whether it is deep, superficial, linear, nonlinear, unstable, or painful; and whether it causes limitation of motion. A rationale for all opinions should be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), a deficiency in the record (i.e. additional facts are required), or a lack of necessary knowledge/training of the examiner. 3. Finally, readjudicate the claims on appeal-entitlement to a disability rating greater than 10 percent for the service-connected left ankle tendonitis with traumatic arthritis and entitlement to a disability rating greater than 10 percent for the service-connected residuals of a right ankle fracture with traumatic arthritis. If any benefit sought is not granted, the Veteran must be furnished a Supplemental Statement of the Case. Afford the Veteran a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, or to report for a scheduled VA examination, may impact the decision made. 38 C.F.R. § 3.655 (2015). He is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2014). 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).