Citation Nr: 1607453 Decision Date: 02/25/16 Archive Date: 03/04/16 DOCKET NO. 10-12 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a higher initial disability rating (or evaluation) in excess of 10 percent for the service-connected left ankle anterior tibialis tendonitis. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1997 to January 2005. This appeal comes to the Board of Veterans' Appeals (Board) following November 2005, March 2008, and June 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A claim for service connection for a left ankle disorder was received in September 2004. The November 2005 rating decision, in pertinent part, granted service connection for left ankle anterior tibialis tendonitis and assigned a noncompensable disability rating effective January 16, 2005 (the day after the Veteran's separation from active service). The March 2008 rating decision, in pertinent part, granted a 10 percent disability rating for the left ankle disability effective September 28, 2007, creating "staged" initial disability ratings. A claim for service connection for PTSD was received in October 2013. The June 2014 rating decision denied service connection for PTSD. In December 2014, the Veteran testified at a personal hearing in San Antonio, Texas (Travel Board hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran did not provide testimony with respect to the issue of service connection for PTSD at the time of the December 2014 Board hearing. In March 2015, the Board (1) dismissed the appeal for an effective date prior to September 28, 2007 for the award of 10 percent disability ratings for right shoulder surgical scars and left ankle anterior tibialis tendonitis, (2) denied an initial disability rating in excess of 20 percent for a right shoulder disability, (3) granted 10 percent initial disability ratings for the period from January 16, 2005 to September 28, 2007 for left ankle anterior tibialis tendonitis, right elbow tendonitis, and right shoulder surgical scars, (4) denied initial disability ratings in excess of 10 percent for the entire initial rating period from January 16, 2005 for left ankle anterior tibialis tendonitis, right elbow tendonitis, and right shoulder surgical scars, (5) denied initial disability ratings in excess of 10 percent for a right knee disability and left ankle scar, and (6) remanded the issue of service connection for PTSD for issuance of a statement of the case. The Veteran appealed the Board's denial of an initial disability rating in excess of 10 percent for left ankle anterior tibialis tendonitis to the United States Court of Appeals for Veterans Claims (Court). In October 2015, the Court partially vacated the Board's March 2015 decision pursuant to a Joint Motion for Partial Remand. The Veteran explicitly abandoned the appeal with regard to the issues of an earlier effective date for a 10 percent disability ratings for the right shoulder surgical scars and left ankle disability and higher initial disability ratings for the right shoulder, right knee, and right elbow disabilities and right shoulder and left ankle scars. The parties to the Joint Motion for Partial Remand further noted that the Court lacked jurisdiction over the issue of service connection for PTSD that the Board remanded in March 2015. With respect to the issue of an initial disability rating in excess of 10 percent for the left ankle disability, the parties to the Joint Motion for Partial Remand requested that the Court vacate the Board's decision on the basis of agreement that the July 2014 VA ankle examination report, relied on by the Board, was inadequate because the VA examiner, while noting that the Veteran had functional loss and/or additional limitation of motion after repetitive use based on "pain on movement" and "ankle pain with plantar flexion," failed to assess or specify the range of motion lost due to pain. The parties agreed that the Board should obtain an additional VA examination or addendum medical opinion addressing the left ankle disability. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Initial Rating for Left Ankle Disability The parties to the October 2015 Joint Motion for Partial Remand agreed that the Board should remand the issue of an initial disability rating in excess of 10 percent for the left ankle disability for a VA examination or addendum medical opinion that addresses the severity of the left ankle disability, specifically, any functional loss or additional limitation of motion after repetitive use attributable to left ankle pain, to include any range of motion lost due to pain. Review of the July 2014 VA examination report reflects that the VA examiner noted that the Veteran did not have additional limitation of motion of the left ankle following repetitive testing, but did have functional loss and/or functional impairment of the left ankle due to pain on movement and mild anterior tibeal ankle pain with plantar flexion. The VA examiner did not describe the functional loss after repetitive use in terms of loss of range of motion due to pain, which the parties to the Joint Motion for Partial Remand agreed should have been done. As such, the Board is remanding for further VA examination. Service Connection for PTSD In a June 2014 rating decision, the AOJ denied service connection for PTSD. In a June 2014 written statement, the Veteran expressed disagreement with the denial of service connection for PTSD. In March 2015, the Board, in pertinent part, remanded the issue of service connection for PTSD for issuance of a statement of a case. See Manlincon v. West, 12 Vet. App. 238 (1999) (where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral to the RO, is required by the Board). Rather than issuing a statement of the case that addressed the issue of service connection for PTSD, the AOJ instead issued a supplemental statement of the case in April 2015. The April 2015 supplemental statement of the case referenced an August 2014 supplemental statement of the case that did not address the issue of service connection for PTSD, but rather other issues decided by the Board in the March 2015 decision. The April 2015 supplemental statement of the case also indicated that the Veteran had provided testimony with respect to the issue of service connection for PTSD at the December 2014 Board hearing; however, review of the Board hearing transcript reflects that the Veteran did not provide testimony with respect to this issue. In June 2014, the Veteran filed a timely notice of disagreement to the June 2014 rating decision. No statement of the case containing a summary of the evidence in the case and applicable laws and regulations has been provided to the Veteran or representative. See 38 C.F.R. § 19.29 (2015). A supplemental statement of the case may not be used to announce decisions of the AOJ with regard to issues not previously addressed in a statement of the case or to respond to a notice of disagreement on newly appealed issues that were not addressed in a previous statement of the case. See 38 C.F.R. § 19.31(a) (2015). The Board finds that the issuance of a supplemental statement of the case rather than a statement of the case is not harmless error because the Veteran has not been afforded the right to testify at a Board hearing (should he choose) or a full summary of the applicable laws and regulations. As such, this issue must be remanded for additional procedural action, specifically, issuance of a statement of the case. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008). Accordingly, the case is REMANDED for the following action: 1. The AOJ should issue a statement of the case that addresses the issue of service connection for PTSD. (The AOJ is directed that a supplemental statement of the case will not constitute compliance with the remand instructions.) The Veteran should be informed that, in order to perfect an appeal of this issue to the Board, a timely and adequate Substantive Appeal following the issuance of the statement of the case must be filed. 2. Schedule a VA examination(s) to assist in determining the severity of the service-connected left ankle disability. All indicated tests and studies should be conducted. The relevant documents in the claims folder should be made available to the examiner for review. Following examination of the Veteran, the VA examiner should offer the following opinions: Is there any functional loss after repetitive testing attributable to pain or pain on motion associated with the left ankle disability, to include any loss of range of motion due to pain, both currently and at the time of the July 2014 VA examination? Is there any additional limitation of motion after repetitive testing attributable to pain or pain on motion associated with the left ankle disability, to include any loss of range of motion due to pain, both currently and at the time of the July 2014 VA examination? The VA examiner should provide a rationale for all opinions rendered with references to the evidence of record. If an opinion cannot be given without resorting to mere speculation, the VA examiner should state so and further provide a reason for such conclusion. 3. Then, readjudicate the issues on appeal. If any of the issues on appeal remain denied, provide the Veteran and the representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). _________________________________________________ J. Parker 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).