Citation Nr: 1752378 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-03 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial rating in excess of 20 percent for a left leg (knee and ankle) disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Rasool, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2006 to October 2009. He had additional service in the Army National Guard. The claims file indicates that he may have additional service from December 1979 to June 1980. [The Board notes that the DD-214 for this period is not currently of record but concludes that this is not prejudicial to the current appeal because the information contained on that form is not relevant to the matter on appeal.] This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. This matter was previously before the Board in June 2013, March 2016, and March 2017 and remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2017). At a July 2016 VA examination, the Veteran reported flare-ups of left distal shin and ankle pain with prolonged weight bearing activities. The VA examiner stated that determining the extent of motion loss during flares required resort to speculation. The Veteran was most recently afforded a VA examination to assess the severity of his left knee and ankle disabilities in April 2017. This examiner indicated the Veteran did not report flare-ups of his left knee and left ankle at the time of examination. Given the Veteran's previous statements concerning flare-ups and a recent holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), additional VA examination is required. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the nature and severity of his service-connected left leg disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. 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. The VA examiner should provide a complete rationale for any opinions provided. 2. Thereafter, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. MAINELLI 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).