Citation Nr: 1628460 Decision Date: 07/18/16 Archive Date: 07/28/16 DOCKET NO. 10-47 304A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for muscle spasm at C5-C6 broad base posterior disc, herniated disc (claimed as a neck condition). 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for degenerative joint disease of the thoracolumbar and lumbosacral spine with congenital lumbar spine canal stenosis (claimed as a low back condition). 3. Entitlement to an initial disability rating in excess of 20 percent for service-connected right ankle sprain residuals. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to October 1982, plus various periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) San Juan Regional Office (RO). In an October 2009 rating decision, the RO granted the Veteran's claim seeking service connection for right ankle sprain residuals. In August 2010, the RO declined to reopen claims seeking service connection for neck and low back conditions. The Board acknowledges that the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for major depressive disorder has been perfected, but not yet certified to the Board. The Board's review of the claims file reveals that the AOJ is still taking action on this issue. As such, the Board does not have jurisdiction over it at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Further development is needed before the Board can adjudicate the Veteran's claims. A review of the Veteran's claims file indicates that he has been in receipt of disability benefits from the Social Security Administration (SSA), with a disability onset date of October 15, 2010. The records regarding the Veteran's SSA claim have not been obtained and associated with his VA file so they may be considered in this appeal, and there is no indication that any attempt was made to obtain these records. Because these SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider them. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2) (2015); see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Therefore, this claim must be remanded to obtain the Veteran's complete SSA record. The Veteran was last afforded a VA examination for his service-connected right ankle sprain residuals in October 2009. In a March 2010 statement in support of his claim, the Veteran stated that he had ankylosis in his right ankle "with a plantar flexion at more than 40 degrees and dorsiflexion at more than 10 degrees and eversion deformity." In a June 2016 brief, the Veteran's representative argued that the Veteran's disability was not adequately assessed. Namely, the representative stated the Veteran experienced flare-ups of his right ankle disability that increased his limitation of movement and caused intermittent incapacitating episodes. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Thus, as the record indicates a potential worsening of the Veteran's condition since the last examination, and the last examination was more than six years ago, a new examination should be obtained on remand. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran. If no medical records are available, this fact should be noted in the Veteran's claims file. 2. Take all appropriate action to obtain records from SSA, including a copy of its determinations concerning the Veteran's claim for disability benefits, together with the medical records that served as the basis for any such determination. 3. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected right ankle sprain residuals. Copies of all pertinent records should be forwarded to the examiner for review. All indicated testing should be carried out and the results recited in the examination report. The examiner is requested to delineate all symptomatology associated with, and the current severity of the Veteran's residuals of a right ankle sprain. The appropriate Disability Benefits Questionnaire(s) (DBQs) should be filled out for this purpose, if possible. 4. Then re-adjudicate the Veteran's claims. If any benefit remains denied, issue an appropriate Supplemental Statement of the Case (SSOC), and give the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals