Citation Nr: 1804040 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-15 938A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for bilateral osteoarthritis of the ankle with Achilles tendonitis, from February 1, 2012 to June 5, 2016. 2. Entitlement to an initial rating in excess of 10 percent for right ankle osteoarthritis with Achilles tendonitis, from June 6, 2016. 3. Entitlement to an initial rating in excess of 10 percent for left ankle osteoarthritis with Achilles tendonitis, from June 6, 2016. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. N., Counsel INTRODUCTION The Veteran had active service from November 1987 to November 1991 and from December 1995 to January 2012. These claims come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In April 2017, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. REMAND The Board regrets the delay that will result from remanding rather than immediately deciding these claims, but additional action is necessary before the Board proceeds. The Veteran is seeking higher initial ratings for right and left ankle disabilities and has requested that the disabilities be separately rated from February 1, 2012. He asserts that the disabilities were as severe in 2012 as they are presently, requiring extensive treatment. In December 2017, the Veteran underwent a VA examination of the ankles, but the report of that examination is incomplete to decide these claims. First, the Veteran claims he has flare-ups of ankle pain, during which he is further limited in functioning, but the VA examiner did not question the Veteran regarding whether and to what extent the loss of function involves a decrease in ankle motion. This is critical as the Veteran's ankle disabilities are rated as moderately impairing under Diagnostic Code 5271, based on arthritis-related motion loss. He is entitled to higher initial ratings under that Diagnostic Code if, during flare-ups, that loss is marked. Second, the Veteran's claims that instability is the most significant problem associated with his ankle disabilities, a symptom that the current ratings do not contemplate. More medical information is therefore needed regarding whether the Veteran's ankles are of such nature they should be rated under different Diagnostic Codes, including by analogy, such as one pertaining to the feet. In addition, a review of the record suggests that there are gaps in the record due to missing documents. Those documents include, in part, any dated between 2011 and 2014, a report of VA examination dated January 2012, lay statements dated 2014, a notice of disagreement (date unknown), and a March 2014 statement of the case. Those crucial records must be added to the Veteran's electronic files. Accordingly, these claims are REMANDED for the following action: 1. Associate with the electronic files all of the Veteran's missing records, to any dated between 2011 and 2014, a report of VA examination dated January 2012, lay statements dated 2014, a notice of disagreement (date unknown), and a March 2014 statement of the case. 2. After all missing documents have been associated with the electronic files, schedule the Veteran for a VA ankle examination. The examiner should review the entire record, including the 2012 and 2016 VA examination reports, during which the Veteran reported flare-ups of ankle pain, all post-service records of foot and ankle treatment, and the Veteran's written statements and testimony, which show he has bilateral ankle instability. The examiner should record in detail the Veteran's history of ankle symptoms, including whether and to what extent ankle motion is further limited during flare-ups. The examiner should diagnose all ankle disabilities found or which were identified in treatment records during the course of this appeal. Accepting as competent any reports of lay-observable ankle symptoms and motion loss, the examiner should opine whether, either on examination or during reported flare-ups, the Veteran experiences marked loss of motion. The examiner should also indicate whether the Veteran has ankle instability, if so, whether it is moderate, moderately severe, or severe, whether he has any ankle deformity and, if so, whether it is moderate or marked. The examiner should opine whether the ankle disabilities markedly interfere with his ability to work. The examiner should provide a rationale with references to the record for the opinions. 3. Then, readjudicate the claims. Consider all possible Diagnostic Codes, including those pertaining to the feet, if applicable. Also consider whether, because of extensive treatment and the fact that his ratings do not contemplate ankle instability, he is entitled to an extraschedular rating for the ankle disabilities. Finally, consider whether separate compensable ratings for right and left ankle disabilities were warranted as of February 1, 2012, and whether 38 C.F.R. § 4.59 is applicable. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Thereafter, return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts 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).