Citation Nr: 18146295 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 06-26 189 DATE: November 1, 2018 REMANDED Entitlement to an increase rating for residuals, left bi-malleolar fracture of the left ankle with degenerative osteoarthritis, left ankle joint, rated as 20 percent disabling is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to August 1983. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The issue was remanded by the Board in August 2010 for further development. In July 2018, the Veteran testified via video conference before the undersigned Veterans' Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Entitlement to an increase rating for residuals, left bi-malleolar fracture of the left ankle with degenerative osteoarthritis, left ankle joint, rated as 20 percent disabling is remanded. After a review of the electronic claims folder the Board notes multiple missing documents, including key procedural and evidentiary records. A September 2017 email correspondence reflects the Veteran’s claims folder as missing. However, subsequent to the email correspondence, records prior to September 2017 were uploaded to the Veteran’s claims file. Notably, the Board’s August 2010 remand and prior RO decisions. Unfortunately, the Veteran’s entire claims record has not been associated with his electronic file, to include medical treatment records. The United States Court of Appeals for Veteran's Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See, O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). To date, there is no evidence the RO has attempted to reconstruct the entire claims file. As such, this matter is remanded. The matter is REMANDED for the following action: 1. In order to reconstruct and/or obtain the Veteran's missing claims file, the AOJ should contact the appropriate service department(s) and/or record storage facility(ies). If the AOJ cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. 2. Obtain all outstanding VA treatment records. All records obtained must be associated with the claims file. 3. Obtain the Veteran's complete service personnel and service treatment records. 4. Contact the Veteran and ask him to submit all VA records in his possession, if he has no already done so. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran. 5. Ask the Veteran to complete a VA Form 21-4142 for any relevant private treatment records not currently associated with the claims file. 6. After, and only after, completion of steps one through five above, schedule the Veteran for an examination by an appropriate clinician to assess the current severity of the Veteran’s ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, including range of passive and active motion on weight bearing and non-weight bearing compared with the opposite undamaged joint if possible. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left ankle disability alone and discuss the effect of the Veteran's left ankle disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Counsel