Citation Nr: 1754743 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-33 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to rating in excess of 20 percent for residuals of a fracture of the left malleolus. REPRESENTATION Appellant represented by: Michael James Kelley, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION The Veteran had active service from September 1980 to November 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In September 2017, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO (Travel Board hearing). A transcript of that hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure a complete record upon which to make an informed decision so that the claim is afforded every possible consideration. The Veteran was last provided a VA examination addressing his left ankle disability in August 2010. See August 2010 VA Compensation and Pension (C&P) Joints Examination Report; August 2010 Evaluation Report from T.F., M.D. Considering that his last VA ankle examination occurred more than seven years ago, the Board finds that the current evidence of record does not adequately reveal the present state of the Veteran's service-connected residuals of a fracture of the left malleolus. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Board finds, therefore, that contemporaneous examination is required to ascertain the nature and current severity of the Veteran's left ankle disability. Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability . . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Accordingly, reexamination is warranted. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a Veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran's claim). The case is REMANDED for the following action: 1. Obtain and associate with the claims folder any outstanding VA treatment records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his left ankle symptoms and the impact of these and his other service-connected conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule an appropriate VA compensation examination to assist in determining the nature and current level of severity of his service-connected left ankle disability. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation, i.e. X-rays, MRI studies, and/or range of motion studies in degrees using a goniometer. All pertinent symptomatology should be reported in detail. In particular, the examiner should test the range of motion using a goniometer in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joint in question and any paired joint(s). See Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner should describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and any additional relevant evidence of record (including the VA treatment and examination reports and the Veteran's private treatment records), the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion (flexion and extension) of the Veteran's left ankle (i.e., the extent of the Veteran's pain-free motion), to specifically include if his pain was not ameliorated by his medication regimen. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria). See also Croft v. Shulkin, No. 16-3294, 2017 U.S. App. Vet. Claims LEXIS 1625, *5-14 (Vet. App. November 6, 2017) (holding that the Board erred in its determination that a rating in excess of 30 percent for the Veteran's cervical spine disability, which is the maximum rating based on range of motion for that disorder, was unwarranted; reasoning that, because a 40 percent evaluation was available for unfavorable ankylosis of the entire cervical spine, a remand was warranted for an examination that took into account limitation of motion during flare-ups; and indicating that, logically, ankylosis could be considered extreme limitation of motion). If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner 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) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, whether favorable or unfavorable, and citing the objective medical findings leading to the conclusions. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. In any event, the type of test performed (i.e. active or passive, weight-bearing or nonweight-bearing), must be specified. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 4. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal. If the benefits on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. 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) (2017).