Citation Nr: 1800809 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 12-00 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial compensable evaluation prior to November 12, 2014, and entitlement to an evaluation in excess of 10 percent on and after November 12, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard, which included periods of active duty service from July 2006 to November 2006 and from January 2008 to January 2009. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in a December 2014 rating decision, the RO increased the evaluation for the Veteran's service-connected left ankle sprain to 10 percent effective from November 12, 2014. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue has been recharacterized as reflected on the title page. In July 2012, the Veteran testified at a video conference hearing before the undersigned; a transcript of the hearing is in the claims file. The Board most recently remanded the case for further development in February 2017. The case has since been returned to the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is required in this case for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The Board finds that a remand is necessary to ensure compliance with the directives of the February 2017 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant a right to compliance with the remand orders). The Board remanded the case in February 2017 to obtain a new VA examination to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the Board directed the examiner to specifically comment on the Veteran's lay statements regarding instability of the left ankle joint. While the AOJ obtained a VA examination in March 2017, and the examiner preformed the appropriate testing in accordance with Correia, the examiner did not discuss the Veteran's lay statements regarding his left ankle instability. See December 2012 private treatment record; November 2014 VA treatment record; Bd. Hrg. Tr. at 3. Instead, the examiner simply indicated that the Veteran did not have left ankle instability. Thus, the Board finds that an addendum opinion is required to comply with the February 2017 Board remand. Additionally, the Board notes that the medical evidence of record suggests left ankle instability. See November 2014 VA treatment record; November 2014 VA examination. The examiner should discuss this medical evidence on remand. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain an addendum opinion, in connection with the Veteran's claim for an increased evaluation for his service-connected left ankle sprain. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Access to the claims files must be made available to the examiner for review. If, after review of the claims file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. In accordance with the February 2017 remand directives, the examiner should discuss the Veteran's lay statements regarding his left ankle instability. See December 2012 private treatment record; November 2014 VA treatment record; Bd. Hrg. Tr. at 3. Additionally, the examiner should discuss the medical findings suggesting left ankle instability. See November 2014 VA treatment record; November 2014 VA examination. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. As it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veterans' claims file, or, in the alternative, the entire claims file, must be made available to the examiner for review. 2. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ CHRISTOPHER MURRAY Acting 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) (2016).