Citation Nr: 18161214
Decision Date: 12/31/18	Archive Date: 12/31/18

DOCKET NO. 16-29 621
DATE:	December 31, 2018

REMANDED

Entitlement to an initial disability rating in excess of 10 percent for residuals of a distal fibula fracture, left lower extremity is remanded.

INTRODUCTION

The Veteran served on active duty from March 1954 to September 1957. 

When this case was most recently before the Board in June 2018 the above-noted issue was remanded for additional development.  The case has since been returned for further appellate review.  

REASONS FOR REMAND

While additional delay is quite unfortunate, the Board again finds further development is required before the Veteran’s claim is decided.

Initially, the Board again notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Moreover, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

In the course of the October 2017 remand, the Board found a January 2016 examination to be insufficient, because the examiner failed to conduct necessary testing to determine whether malunion or nonunion of the fibula was present.  During a recent March 2018 VA examination, the examiner obtained an x-ray of the Veteran’s left ankle, but failed to obtain radiographic evidence to determine whether malunion or nonunion of the fibula exists.  Therefore, the Board finds a remand is necessary to obtain complete x-rays of the Veteran’s left fibula, so that a proper evaluation of the Veteran’s disability can be rendered. 

On remand, relevant ongoing medical records should also be obtained.  38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 

Accordingly, these matters are REMANDED for the following actions: 

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 

2.  Then, obtain a complete x-ray of the Veteran’s left fibula from the examiner who conducted the Veteran’s most recent November 2018 VA examination.  A new examination of the Veteran should only be conducted if deemed necessary by the examiner.

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3.  Finally, undertake any other development determined to be warranted, and then readjudicate the issue on appeal.  If the benefit sought on appeal is not granted to the Veteran’s satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond.  Thereafter, if indicated, the case should be returned to the Board for further appellate action.

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	G. Fraser, Counsel