Citation Nr: 1644508 Decision Date: 11/25/16 Archive Date: 12/02/16 DOCKET NO. 10-16 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased initial rating for right ankle sprain residuals, currently rated as 10 percent disabling. 2. Entitlement to an increased initial rating for postoperative left ankle sprain residuals, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Santiago, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1987 to March 1996, January 2003 to July 2004, and July 2008 to August 2009. He also had active duty for training from May 1986 to September 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied initial compensable ratings for both ankles. In October 2013, the Board remanded the issues for further development. In a November 2013 rating decision, the RO increased the noncompensable ratings for both ankles to 10 percent each, effective December 4, 2006, exclusive of subsequent active duty time. In that rating decision, the RO also granted a temporary 100 percent evaluation for left ankle surgery and granted a separated 10 percent rating for a postoperative left ankle scar. Although higher ratings have been assigned, the increased rating matter remains in appellate status as the maximum rating has not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The appeal is REMANDED to the agency of original jurisdiction. VA will notify the appellant if further action is required. REMAND In accordance with the Board's October 2013 remand, the Veteran was afforded a VA examination for his ankles in November 2013. However, remand is again required in order for range of motion testing to be conducted pursuant to a recent decision issued by the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016). The new examination should include specific findings regarding the Veteran's ankle range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. Regarding the Court's further ruling that the Veteran's "undamaged" joint should be tested for comparison to the service-connected joint, the Board notes that the Veteran is service connected for the bilateral ankles. As such, there is no undamaged paired joint that can be measured for comparison. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to assess the current severity of his bilateral ankle disability. The claims file should be reviewed by the examiner. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. All symptomatology associated with the Veteran's bilateral ankles should be reported. The examiner must record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. If this testing cannot be done, then the examiner should clearly explain why this is so. In doing so, the examiner should provide a retrospective medical opinion on the Veteran's range of motion of the bilateral ankles throughout the time period of the claims (since December 2006). That is, with consideration of the evidence of record and his history, comment on the historical severity of the Veteran's range of motion testing on both active and passive motion and in weight-bearing and nonweight-bearing. If this opinion cannot be provided, the examiner should clearly explain why this is so, including discussing whether the prior VA examinations are accurate representations of the Veteran's disability level. The examiner should explain the medical basis for the conclusions reached. 2. Finally, readjudicate the claims on appeal. If the benefits sought remain denied, issue a supplemental statement of the case to the Veteran and his representative. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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 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 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).