Citation Nr: 0003802 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-13 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a compensable evaluation for residuals of a right ankle sprain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Tierney, Counsel INTRODUCTION The veteran served on active duty from May 1972 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for residuals of a right ankle sprain and assigned a noncompensable rating. REMAND It is contended by and on behalf of the veteran that the noncompensable evaluation assigned to his right ankle disability does not accurately reflect the severity of that disability. The veteran contends that his right ankle is weak and very stiff in the morning. In addition, he claims that the ankle is painful, requiring pain medication, and is adversely affecting his employment as a security guard. As a preliminary matter, the Board finds that the veteran's claim of entitlement to a compensable evaluation for his service-connected right ankle disability is plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well- grounded claim). The Board, however, finds that there are pertinent VA medical records which have not been associated with the veteran's claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (per curiam) (records are in constructive possession of VA). In addition, VA has not satisfied its duty to assist the veteran in developing his claim as required by 38 U.S.C.A. § 5107(a). At the videoconference hearing before the undersigned Board Member in July 1999, the veteran testified that his right ankle disability had progressively become worse since the most recent VA examination in October 1997. Accordingly, another examination is necessary to determine the current severity of the service-connected right ankle disability. The veteran also testified that he had been going to VA for his ankle for about six years and had his prescriptions refilled at the VA Medical Center in Toledo, Ohio. The claims file contains VA outpatient treatment records only to June 1996. The veteran also testified that he received treatment from Stathis D. Palaskas, D.C. The claims file contains a statement dated in November 1998 from Dr. Palaskas confirming that the veteran was his patient and describing the treatment the veteran had received. However, the claims file contains no clinical records from Dr. Palaskas. Under the circumstances, the Board is of the opinion that further development is warranted. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, who may possess additional records pertinent to his claim, to include treatment with Dr. Palaskas. When the requested information and any necessary authorizations have been received, the RO should attempt to obtain copies of all pertinent records which have not already been obtained. In any event treatment records from the VA Medical Center at Toledo, Ohio, for June 1996 to the present should be obtained. 2. Then, the RO should arrange for the veteran to undergo a VA orthopedic examination by a physician with appropriate expertise to determine the nature and extent of impairment from the veteran's service-connected right ankle disability. All indicated studies, including X-rays and range of motion studies in degrees, should be performed. The extent of any right ankle instability should be noted. Tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should be described. The physician should be requested to identify any objective evidence of pain and to identify the specific excursions of motion, if any, accompanied by paint. To the extent possible, the examiner should assess the extent of any pain. The physician should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. If this is not feasible, the physician should so state. The examiner should also provide an opinion concerning the impact of the disability on the veteran's ability to work. The rationale for all opinions expressed should also be provided. The veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. The examination report is to reflect whether a review of the claims file was made. The examination report must be typed. 3. Thereafter, the RO should review the claims file and ensure that all development actions, including the medical examination, have been conducted and completed in full. Then, the RO should undertake any other indicated development and readjudicate the issue of entitlement to a compensable evaluation for the right ankle disability. In readjudicating the right ankle claim, the RO again should consider all pertinent diagnostic codes under the VA Schedule for Rating Disabilities in 38 C.F.R. Part 4 and application of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination and pain on movement of a joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). If the benefit sought on appeal is not granted to the veteran's satisfaction, or if a timely Notice of Disagreement is received with respect to any other matter, the RO should issue a Supplemental Statement of the Case for all issues in appellate status and inform the veteran of any issue with respect to which further action is required to perfect an appeal. The veteran should be provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. SHANE A. DURKIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).