Citation Nr: 18146820 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 12-09 488 DATE: November 1, 2018 REMANDED Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the right ankle with calcaneal spur is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1973 to September 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from and October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes, as a preliminary matter, that in November 2008, the Veteran was awarded service connection for right ankle instability, initially rated at 10 percent disabling. Subsequently, the RO proposed a decreased rating of 0 percent for the Veteran’s service connected right ankle instability. The Veteran filed a Notice of Disagreement (NOD) to the proposal. In a letter dated January 2011, the RO informed the Veteran that his NOD dated October 18, 2010, was premature and thus could not be accepted as an NOD. In February 2011, the RO decreased the Veteran’s rating for his right ankle instability from 10 percent to 0 percent, reducing his overall combined evaluation from 40 percent to 30 percent. At that time, the RO also informed the Veteran that he had one year to appeal that reduction. See Letter from RO dated February 28, 2011. The Veteran did not file an NOD pertaining to the February 2011 reduction. However, in his appeal to the Board for an increased rating for his right ankle degenerative joint disease, the Veteran indicated that he wanted his combined rating restored. See Form 9 dated March 29, 2012; see also Veteran’s Statement in Support of Claim dated March 31, 2012. The Board finds that this statement constitutes a statement for restoration of the Veteran’s right ankle instability rating, and as such, the issue is referred to the RO for appropriate action. The AOJ should respond to the statement. In July 2015, the Veteran testified at a videoconference hearing held at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In December 2015, the Board remanded the Veteran’s claim. Thereafter, in a May 2018 rating decision, the RO increased the Veteran’s degenerative joint disease of the right ankle evaluation from 10 percent to 20 percent, effective June 4, 2010. As this increase does not constitute a full grant of the benefit sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran’s VA claims folder has been returned to the Board for further appellate proceedings. In December 2015, the Board also remanded the Veteran’s claim of entitlement to service connection for a left hip disability. This claim was subsequently granted in an April 2016 rating decision. In view of the foregoing, this issue has been resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). The Board notes that in July 2018, the Veteran filed a claim for entitlement to Chapter 35 benefits. This issue has not been adjudicated by the RO. Therefore, the claim is referred to the RO for appropriate action. Higher evaluation for degenerative joint disease of the right ankle As discussed in the previous Board remand, in addition to the Veteran’s service-connected degenerative joint disease of the right ankle, he also has a nonservice-connected right Achilles tendon disability - namely a partial-thickness Achilles tendon tear. See VA examination dated September 2010. The Veteran has specifically asserted that his Achilles tendon disability was caused by his service-connected arthritis; this issue has not been considered by the RO in the first instance. After review of the record, the Board determined that the outcome of the claim is inextricably intertwined with the unadjudicated claim for service connection for the Achilles tendon disability, which may manifest in overlapping symptomatology with the Veteran’s service-connected right ankle arthritis. Accordingly, the Board directed the agency of original jurisdiction (AOJ) to adjudicate the Veteran’s claim for secondary service connection of his right Achilles tendon. However, a review of the record reveals that such action was not taken. Therefore, the Board finds that remand is warranted for compliance with the December 2015 Board remand instructions, specifically adjudication of the Veteran’s claim for secondary service connection of his right Achilles tendon. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that a Social Security Administration (SSA) inquiry dated July 2017 indicates that the Veteran is in receipt of SSA disability benefits. The Board further notes that the Veteran is currently unemployed and has been awarded TDIU. There is no indication in the record that any attempts have been made to obtain records in conjunction with the Veteran’s claim for SSA disability benefits and, indeed, his SSA records are not currently in the claims file. The Board finds that these records may be of probative value in evaluation of the Veteran’s increased rating claim. Therefore, on remand, any determination pertinent to the Veteran’s claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA).   The matter is REMANDED for the following action: 1. Request the SSA to provide copies of any records pertaining to the Veteran’s application for SSA disability benefits, in any, to include any medical records obtained in connection with the application. Any materials obtained should be associated with the Veteran’s VA claims folder. If, after continued efforts to obtain Federal records the AOJ concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 2. Adjudicate the Veteran’s claim for secondary service connection of his right Achilles tendon. All development deemed necessary should be completed. 3. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied,   issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel