Citation Nr: 1749093	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-05 149	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for service-connected residuals, right lateral malleolar fracture.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Isaacs, Associate Counsel






INTRODUCTION

The Veteran served on active duty from March 1989 to December 1991.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In November 2016, the Board remanded the claim for additional development.

The appeal is REMANDED to the agency of original jurisdiction.  VA will notify the Veteran if further action is required.


REMAND

The Veteran's claim for an increased rating for his right ankle disability must once again be remanded for further development.

The Veteran underwent an October 2012 VA examination to determine the severity of his right ankle disability.  Subsequent to the October 2012 VA examination, the Veteran reported increased pain of the right lower extremity, including in September 2014 and October 2014 VA treatment records.

The Board remanded the claim in November 2016 for further development, including to verify the Veteran's present mailing address, as well as afford him a VA examination to determine the current severity of his right ankle disability.  Scheduling an examination was scheduled for January 2017, but it was noted that the Veteran failed to RSVP.  The record indicates the Veteran has been incarcerated previously, and was incarcerated at the time of the examination.  Thereafter, in July 2017, the RO verified that he had been released from prison and also, verified his present mailing address.  As such, the Veteran should be rescheduled for a new VA examination to determine the current severity of his right ankle disorder.

The Board notes the October 2012 VA examination report did not include full joint testing for pain on both active and passive motion, and with weight-bearing, as well as nonweight-bearing.  The examiner did test the left, undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  On remand, the VA examiner should address such inquiries.

Further, the October 2012 VA examiner did not provide an adequate rationale with regard to potential additional functional loss during the reported flare-ups of the Veteran's right ankle.  On remand, the VA examiner is required to ascertain adequate information regarding the Veteran's flare-ups and "estimate the functional loss that would occur during flares."  See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).

Lastly, in light of the remand, any relevant ongoing VA treatment records should be requested on remand.  See 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain updated VA treatment records from October 2016.

2.  After completion of the above, schedule the Veteran for an appropriate VA examination to determine the nature and severity of his right ankle disability.  

The examiner should record the range of motion observed on clinical evaluation, in terms of degrees of extension and flexion.  The examiner should specifically test the right ankle joint for pain on both active and passive motion, in weight bearing and nonweight-bearing and with range of motion measurements of the opposite joint. 

The examiner should also estimate the functional loss that would occur during flares.

If any of this cannot be accomplished, it should be thoroughly explained why.

All opinions expressed should be accompanied by supporting rationale. 

2.  If the Veteran does not report to the VA examination, include a copy of the notification letter scheduling the examination in the claims file.

3.  Finally, readjudicate the appeal.  If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.

The Veteran 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 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.A. §§ 5109B, 7112.



_________________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252, 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).
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