Citation Nr: 0006728 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 97-02 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for postoperative exostectomy of left os calcis currently rated 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion REMAND The veteran served on active duty from October 1967 to June 1970. The veteran's current rating under Diagnostic Code 5271 is the highest schedular rating under that code. Under Esteban v. Brown, 6 Vet. App. 259 (1994), different manifestations of the same disorder may be rated separately under multiple diagnostic codes. In this case, the most recent Department of Veterans Affairs (VA) examination of the veteran's left ankle was in September 1996. The scar was then described as well healed, with some tenderness to touch. In addition, the veteran reported in his January 1997 appeal that he cannot walk for about 4 to 5 weeks per year. The record does not reflect that the regional office (RO) has considered assigning a separate, compensable rating under Diagnostic Code 7804 for a tender scar, or that the RO has considered whether the assignment of an extraschedular rating under 38 C.F.R. § 3.321 is appropriate in light of the veteran's January 1997 description of his disability, which was not indicated earlier. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for his left ankle disability since June 1996. After securing the necessary release, the RO should obtain these records. 2. The veteran should be afforded a VA examination to determine the nature and extent of his service-connected left ankle disability. In particular, the examiner should note findings, e.g., tenderness, etc., concerning the scar, and should also note any limitations of function due to pain, e.g., weakened movement, excess fatigability, pain on movement, swelling, deformity, etc. The claims folder should be made available to the examiner. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. In particular, the RO should consider whether a separate, compensable rating is warranted for any service- connected disability of the ankle, such as the scar, and the disabling effect, if any, due to pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The RO should also specifically consider whether an extraschedular rating is warranted under 38 C.F.R. § 3.321. 4. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (1999). 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. MARY GALLAGHER 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).