Citation Nr: 1807929	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  13-05 427	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an extra-schedular rating for residuals of a fracture of the left ankle, with degenerative joint disease and sprain.


REPRESENTATION

Appellant represented by:	Carolyn J. Kerr, Agent


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

B.A. Evans, Associate Counsel

INTRODUCTION

The Veteran had peacetime duty in the United States Coast Guard from June 1983 to December 1985.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  

In connection with this appeal, the Veteran testified at a hearing before the Board at the Board's office in Washington, D.C in March 2015.  A transcript of that hearing has been associated with the claims file.  In September 2017, the Board informed the Veteran that the judge who held his March 2015 hearing was no longer at the Board, and that he was entitled to another hearing.  

In September 2017, the Veteran indicated that he did not wish to appear at another Board hearing and wanted the case to be considered with the evidence of record.  

Historically, the Board denied this case in in May 2015.  The Veteran subsequently appealed the Board's May 2015 decision to the Court of Appeals for Veterans Claims (CAVC).  In a December 2015 Joint Motion for Remand (JMR), the CAVC vacated the Board's May 2015 decision and remanded the claim to the Board. 

Thus, the case returned to the Board in May 2016, at which time the issue currently on appeal was remanded for additional development.  The RO properly complied with the May 2016 Board remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).  The case has now been returned to the Board for further appellate action.

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




REMAND

Regrettably, the Board finds that additional development is required before the remaining claim on appeal is decided.  The Veteran and his agent asserted that his left ankle disability causes symptoms that result in an exceptional or unusual disability picture, as to render impractical the application of the regular rating standards.  Review of the record shows that the Veteran's left ankle disability is rather severe in nature, but has not manifested ankylosis prescribed by Rating Codes 5270-5274 as necessary to warrant a higher scheduler rating.  38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274 (2017). 

Therefore, the Board finds that the rating schedule may be inadequate and that the issue of entitlement to an extra-schedular rating for a left ankle disability pursuant to 38 C.F.R. § 3.321(b)(1) should be referred to the Director of Compensation Service for consideration.  38 C.F.R. § 3.321(b)(1) (2017).  

Accordingly, the case is REMANDED for the following action:

1.   Identify and obtain any outstanding VA and private treatment records and associate them with the claims file.

2.  Then, refer the case to the Director of Compensation Service for consideration of whether an extra-schedular rating for the service-connected residuals of a fracture of the left ankle, with degenerative joint disease and sprain is warranted pursuant to 38 C.F.R. § 3.321(b)(1).

3.  Finally, readjudicate the remaining claim on appeal - entitlement to an extra-schedular rating for service-connected residuals of a fracture of the left ankle, with degenerative joint disease and sprain.  If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then return the claim to the Board. 

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



JOHN J. CROWLEY
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).