Citation Nr: 20037035 Decision Date: 05/29/20 Archive Date: 05/29/20 DOCKET NO. 13-18 050 DATE: May 29, 2020 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected residuals status post fracture distal fibula left ankle and internal fixation (left ankle disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1996 to June 1997, from October 2004 to December 2005, and from July 2010 to May 2011. Entitlement to an initial rating in excess of 10 percent for service-connected left ankle disability is remanded. This appeal was previously before the Board in August 2018. At that time, the Board noted that the Veteran had requested a Decision Review Officer (DRO) hearing at the agency of original jurisdiction (AOJ) in his June 2013 substantive appeal, and that there was no evidence, to include a transcript, showing that the hearing was scheduled or took place, and there was nothing in the record indicating that the Veteran had withdrawn his request. Prior to remanding the appeal, the Board sought clarification in May 2018 as to whether the Veteran still wished to appear for a hearing before a local hearing officer. He was informed that, if he did not respond to the letter within thirty days of the letter, the Board would accept his June 2013 request as his choice. In other words, if he did not respond, the Board would assume the Veteran wanted to appear for a DRO hearing. Because he had not responded to the May 2018 letter, the Board determined that his request for a DRO hearing remained outstanding, and a remand was necessary so that the AOJ can schedule the Veteran for a DRO hearing at the next available opportunity. After obtaining additional medical records, and after attempting to schedule the Veteran for an examination (to which the Veteran failed to report), the AOJ readjudicated the Veteran’s claim in a March 2020 Supplemental Statement of the Case (SSOC). There is no indication that the AOJ attempted to schedule the DRO hearing prior to denying the claim. Notably, in the March 2020 SSOC, the AOJ referenced the Veteran’s failure to respond to the Board’s May 2018 letter as the reason why it did not schedule a DRO hearing. However, as explained in the Board’s prior remand, the Veteran’s failure to respond to the May 2018 letter was not a withdrawal of his hearing request; rather, a non-response was interpreted by the Board as confirmation that he did wish to appear for his hearing, and served as the basis for the remand. The request for a DRO hearing therefore remains outstanding, and such must be scheduled on remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted above, the AOJ attempted to schedule the Veteran for a VA examination to address the current nature and severity of his service-connected left ankle disability in September 2019, but he failed to report to the scheduled examination. Because the appeal is being remanded for the reason above, and to ensure an adequate record upon which to decide the Veteran’s claim for an increased rating, the AOJ should make one more attempt to schedule him for a VA examination to address the current nature and severity of his service-connected left ankle disability. The Veteran is advised that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. § 3.655. Finally, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through May 11, 2020, are currently of record. The matters are REMANDED for the following action: 1. Associate any VA treatment records dated from May 11, 2020, to the present with the claims file. 2. The Veteran should then be scheduled for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected left ankle disability. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. The entire record must be made available to and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his service-connected disability. Any indicated evaluations, studies, and tests should be conducted. The examiner must address each of the following inquiries: a) The examiner should describe all symptoms associated with the Veteran’s service-connected left ankle disability. b) The examiner should then test for pain on motion in active motion, passive motion, weight-bearing, and nonweight-bearing. c) For each joint, the examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use. The Veteran should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use. d) If the examination does not occur during a flare-up or following repetitive use, based upon the evidence of record, and the information elicited on examination, the examiner should estimate range of motion loss during a flare-up and/or after repetitive use, if any. 3. Thereafter, schedule the Veteran for a hearing before a DRO. The Veteran and his representative should be notified of the date, time, and location of this hearing. 4. Then, readjudicate the issue on appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.