Citation Nr: 1807885	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  14-19 218	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to a compensable disability rating for residuals of a stress fracture of the right tibia status post muscle release (right tibia disability).

2.  Entitlement to a compensable initial disability rating for residuals of a stress fracture of the left tibia (left tibia disability) prior to March 14, 2013, and to a disability rating in excess of 10 percent thereafter.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. D. Bruce, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1995 to October 1999.

These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2012 and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office.

In April 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

In May 2014, the RO partially granted an increased rating for the Veteran's left tibia disability for part of the period on appeal.  Because the increased disability rating assigned is not the maximum rating available, the claim remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

While further delay is regrettable, the Board finds additional development is necessary before a decision may be rendered in the matters on appeal.

The Veteran has asserted that his bilateral tibia disabilities result in pain of the lower extremities as well as impairment of the knees and ankles.  In that regard, the Board notes that impairment of the Veteran's knees has been evaluated, but impairment of his ankles has not.  Accordingly, because of this and because the Veteran last underwent VA examination in connection with this claim nearly five years ago, the Board finds remand is warranted so that the severity of the Veteran's disabilities, including any associated ankle impairment, may be evaluated.

Updated relevant treatment records should also be associated with the claims file.  38 U.S.C. § 5103A(c) (2012).

Accordingly, the case is REMANDED for the following actions:

1.  Ask the Veteran to identify all outstanding treatment records relevant to the claims for increased ratings for bilateral tibia disabilities.  All identified VA records should be added to the claims file.  All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran.  If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e) (2017)), to include notifying the Veteran of the unavailability of the records. 

2.  After the above records have been associated with the file, schedule the Veteran for appropriate VA examination(s) to assess the current severity of his service-connected bilateral tibia disabilities.  The claims file should be reviewed by the examiner.  Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail.  All symptomatology associated with the Veteran's tibia disabilities should be reported.  The examiner(s) should also evaluate any related impairment of the Veteran's knees and ankles.

3.  After completing the requested actions, and any additional actions deemed warranted, the AOJ should readjudicate the claims on appeal.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board for appellate consideration, if in order.  

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 by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



_________________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court.  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).