Citation Nr: 0007814 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 97-03 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased evaluation for residuals of fracture of the left ankle with history of aseptic necrosis of the talus and traumatic arthritic changes, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The veteran, who had active service from July 1970 to July 1973, appealed that decision to the Board. REMAND The claim for an increased evaluation for the veteran's service-connected left ankle disability is well grounded. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (contention of an increase in disability severity renders claim well grounded). The VA has a statutory obligation to assist the appellant in the development of facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). The Board notes that additional development is required before it can adjudicate the veteran's claim of entitlement to an increased disability rating for his residuals of fracture of the left ankle with history of aseptic necrosis of the talus and traumatic arthritic changes. While the Board regrets the delay associated with this remand, this action is necessary to ensure that the veteran's claim is fairly adjudicated. The veteran claims that his service-connected left ankle disability has become increasingly painful and causes pronounced limitation of motion of the left foot as well as decreased function of the left leg. The veteran was examined by VA physicians in June 1995 and March 1996. Following evaluation in March 1996, the examining orthopedist commented in a follow up opinion of July 1996 that additional examination would be helpful to clarify the veteran's degree of impairment. As noted, the veteran was last afforded an orthopedic examination by the VA four years ago. However, the most recent examiner indicated that further examination would be useful in this case. The United States Court of Appeals for Veterans Claims has held that the VA has a duty to assist the veteran in the development of facts pertinent to his claim, which includes conducting a thorough and contemporaneous medical examination of the veteran. See Talley v. Brown, 6 Vet. App. 72, 74 (1993); see also 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.303(a) (1999). Therefore, in view of the date of the most recent examination report, and considering the physician's recommendation for reexamination, the veteran should be afforded a VA examination to determine the nature and severity of his residuals of fracture of the left ankle with history of aseptic necrosis of the talus and traumatic arthritic changes. The examination report should include findings pertaining to painful motion and painful use, as well as weakened movement and excess fatigability, with respect to any joint affected. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. As a final note, the Board points out that the veteran has reported outpatient treatment at various local VA medical facilities, including medical centers in Grand Rapids, Battle Creek, and Ann Arbor. While it does appear that the RO has made several attempts to obtain pertinent records from those facilities, it is not clear from the record as to whether the complete records from those facilities have been obtained. It appears from the record that the only record obtained was a VA Health Summary which lists, in pertinent part, the dates of the veteran's clinic visits between February 1990 and April 1996 and which includes x-ray reports dated between February 1990 and March 1996. The actual notes from these visits other than an April 1996 visit are not of record. The VA is deemed to have constructive knowledge of these records and, in this case, has actual knowledge of their existence. The Board notes that any outstanding records must be associated with the claims file for consideration with this appeal. See Bell v. Derwinski, 2 Vet. App. 611 (1992). See also VAOPGCPREC 12-95, 60 Fed. Reg. 43186 (1995) ("...an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error. . . ."). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain and associate with the claims file any additional medical records pertaining to the veteran's treatment of the left ankle performed at the VA Medical Centers (or other VA facilities) at Ann Arbor, Battle Creek and Grand Rapids, which are not presently associated with the claims file. 2. The veteran should be afforded an orthopedic examination to determine the nature and extent of his service- connected left ankle disability. The claims file should be made available to the examiner for review prior to examination. All necessary tests should be performed. The examiner is requested to note all ranges of motion of the veteran's left ankle and also note whether there are objective signs of pain on motion or with movement or weightbearing of the left ankle. The examiner is asked to note whether there is ankylosis or any other deformity of the left ankle and, if so, describe such in detail. The examiner is requested to specifically note whether and to what degree there is ankylosis of the ankle in plantar flexion or in dorsiflexion. The examiner should also provide a full description of the effects of the service-connected left ankle disability upon the veteran's ordinary activity. The examiner should indicate whether the affected joint exhibits weakened movement, excess, fatigability, or incoordination. To the extent possible, any additional functional loss should be described in terms of additional loss of range of motion. If this is not feasible, the examiner should so state. A complete rationale should be given for all opinions and conclusions expressed. 3. The RO should review the examination report to determine if it is in compliance with this REMAND. If deficient in any manner, it should be returned, along with the claims file, for immediate corrective action. 4. After completion of the above requested development, the RO should again review the claim of entitlement to an increased evaluation for residuals of fracture of the left ankle with history of aseptic necrosis of the talus and traumatic arthritic changes in light of all pertinent evidence and all applicable laws, regulations, and case law, including 38 C.F.R. §§ 4.40, 4.45. The RO should consider limitation of function of any affected part. In so doing, the RO should consider whether the criteria for an increased schedular rating or the criteria for submission for consideration of an extra-schedular rating for the veteran's service- connected left ankle disability, pursuant to 38 C.F.R. § 3.321(b)(1), are met. 5. If the determination of this claim remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. 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). S. L. KENNEDY 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).