Citation Nr: 1756413 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-15 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating higher than 20 percent disabling for status post right subtalar fusion and debridement of the talonavicular joint. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from November 1985 to August 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran was afforded a Travel Board hearing in April 2017. A transcript of the hearing is of record. In a September 2017 rating decision, the Veteran was granted service connection for hypertension and a right thumb disability. He was denied service connection for a left ear hearing loss disability. In correspondence received in October 2017, the Veteran expressed disagreement with the evaluations assigned for the grant of service connection for hypertension and the right thumb. He also expressed disagreement with the denial of service connection for left ear hearing loss. By way of a November 2017 letter, the RO acknowledged receipt of the NOD and recorded the appeal in VA's Veterans Appeals Control and Locator System (VACOLS), which is an automated database for tracking appeals. As the record indicates that further action is pending at the RO, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As the record reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable in this case. Therefore, these claims remain under the jurisdiction of the RO 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 The Veteran appeals the denial of an increased rating for status post right subtalar fusion and debridement of the talonavicular joint. In relation to his claim, the Veteran was afforded a VA examination in July 2011. The record shows that the Veteran had ankle surgery in June 2012 and that his disability may have worsened since his last VA examination. As such, the Board finds that a new VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected right ankle disability. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder records of the Veteran's VA treatment since November 2017. 2. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected right ankle disability. Access to VBMS must be made available to the examiner for review. In accordance with the latest worksheets for rating the ankle, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. 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. The VA examiner should provide a complete rationale for any opinions provided. 3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the increased rating issue on appeal. If the benefits sought are not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).