Citation Nr: 1751999 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-21 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating in excess of 10 percent for residuals of left ankle tenosynovectomy of the posterior tibialis with tarsal tunnel release. REPRESENTATION Appellant represented by: A.D., One time Agent ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1990 to October 1990, November 1990 to August 1991, October 2004 to December 2005, and May 2006 to August 2007. He also served in the Army National Guard. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a May 2008 rating decision of the VA Regional Office in Montgomery, Alabama. In December 2015, the Board remanded the claim for further development. The claim is now returned to the Board for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its December 2015 remand, the Board directed the RO to schedule the Veteran for a VA examination to ascertain the severity of his service-connected left ankle disability. The examiner was asked to indicate to what extent the Veteran experienced functional loss due to pain and/or any other symptoms noted during flare-ups or with repeated use. The Veteran underwent a VA examination in May 2016. However, upon examination, the examiner stated that she was unable to provide an opinion without resorting to mere speculation as to the functional limitations experienced by the Veteran with repeated use of his left ankle, as the examination was not occurring over a period of time. Additionally, while the Veteran had previously reported pain, swelling, numbness, and discoloration around his left ankle, the examiner solely noted the Veteran's complaints of pain. See April 2016 Statement in Support of Claim. She failed to address his previous statements regarding the symptomatology related to his left ankle disability. The opinions proffered were not supported by a complete rationale, and a clear conclusion with supporting data, as well as reasoned medical explanations connecting the two was not provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Once VA undertakes to provide an examination, it has a duty to insure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007) (overruled on other grounds). As such, a new examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination concerning the current severity of his service-connected left ankle disability, if possible, with an examiner who has not previously examined the Veteran. The examiner must note that he or she reviewed the claims file. All indicated tests and studies must be completed. Range of motion testing should be undertaken for the left and right ankles, to include after repetitive use. The examiner should report the ranges of motion in degrees. The examiner should consider whether there is additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearings; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion. If so, the examiner should describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the functional limitations associated with the damaged joint. VA regulations as interpreted by courts require that the examiner address the additional limitation due to pain, weakness, incoordination, or flare-ups in degrees of additional range of motion loss. If the examination occurs when a flare-up is not being experienced, or at a time without repeated use over a period of time, the examiner must ask the Veteran to report his ranges of motion during flare-ups or with repeated use over a period of time. The examiner should opine whether the reported limitation is consistent with the disability shown on examination and in the record. Even if the examiner believes he or she cannot provide an opinion without resort to speculation, the examiner must solicit and record the Veteran's reports of limitation during such episodes. The examiner should also note the manifestations and severity of any associated neurologic impairment. 3. If any benefit sought on appeal remains denied issue a Supplemental Statement of the Case. Then return the case to the Board, if otherwise in order. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ Mark D. Hindin 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) (2017).