Citation Nr: 1644740 Decision Date: 11/29/16 Archive Date: 12/09/16 DOCKET NO. 13-22 010A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased disability rating in excess of 20 percent for residuals of a fractured right ankle, status post revisions. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1986 to September 1990 and in February 1991. This matter comes to the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in August 2016 and a transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA's duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014). Furthermore, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Significantly, the United States Court of Appeals for Veterans' Claims (Court) has recently held that 38 C.F.R. § 4.59 (2015) creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 21 Vet. App. 158 (2016). Specifically, the Court concluded that the final sentence of 38 C.F.R. § 4.59 required testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Id. Notably, a review of the evidence of record reveals that prior VA examinations regarding the Veteran's service-connected right ankle conducted in July 2010 and March 2015, as well as a private disability benefits questionnaire (DBQ) completed in August 2013, fail to fully comply with the Court's holding in Correia; as such, remand is required to obtain an adequate examination. See id.; see also Barr, 21 Vet. App. 303. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a current VA examination to determine the severity, manifestations, and effects of her service-connected right ankle disability. The examiner must review the claims file in conjunction with the examination. The examiner must specifically test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both right and left ankles. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Additionally, the examiner should clearly document any functional impairment as a result of the Veteran's right ankle disability. 2. Thereafter, review the resulting examination report to ensure its adequacy with above directives and the Court's holding in Correia v. McDonald, 21 Vet. App. 158 (2016). If the resulting examination is inadequate for any reason, return the matter to the VA examiner for corrective action. 3. Readjudicate the Veteran's claim of entitlement to an increased disability rating in excess of 20 percent for residuals of a fractured right ankle, status post revisions. If the claim remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond, after which the matter should be returned to the Board for further adjudication, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 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 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).