Citation Nr: 1803447 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-08 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of an Achilles tendon rupture with calcaneal spur of the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Mays, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from January 1978 to January 2000. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia South, Carolina. This matter was remanded by the Board in October 2014 and April 2017. For the reasons discussed below, the Board finds that the RO is not in substantial compliance with the directives set forth by the April 2017 remand. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board regrets further delay, the Veteran's claim must be remanded to ensure that all due process requirements have been satisfied. This case was remanded by the Board in April 2017 for compliance with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In this regard, the Veteran was afforded an examination in June 2017; however, that examination is inadequate. See Stegall v. West, 11 Vet. App 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In Correia, the United States Court of Appeals for Veterans Claims (Court) held that, "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described as indicated in the final sentence of 38 C.F.R. § 4.59, which states that, "[t]he joints involved should be tested 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." 28 Vet. App. at 164. Unfortunately, the examination report does not satisfy Correia because the examiner did not address the appropriate ankle. Notably, the examiner addressed the issues noted in Correia with respect to the Veteran's left ankle, but not with respect to the Veteran's service-connected right foot. The examiner stated: "Correia question 1&2 for left ankle are negative." It appears the examiner attempted to address the issue of pain with respect to the opposite joint, however, the examiner did not address pain on both active and passive motion and in weight bearing and non-weight bearing with respect to the joint in question. As such, the examination is inadequate and remand is required so that the Veteran may be afforded a new VA examination that complies with Correia. Remand is also required for compliance with the Court's holding in Sharp v. Shulkin. 29 Vet. App. 26 (2017). In Sharp v. Shulkin, the Court held that pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per the veteran' perspective, to what extent, if any, they affect functional impairment." Sharp, at 32. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). In the instant case, the examiner indicated that the examination was not performed during a flare-up, although it was noted that the Veteran does experience flare-ups. The examiner stated that the Veteran suffered pain, weakness, fatigability or incoordination during flare-up, but the examiner made no effort to describe the functional impairment such as loss of range of motion during flare-ups. In light of Sharp, a new examination is necessary. Therefore, on remand, the Veteran should be afforded additional VA examinations to ascertain the severity and manifestations of her service-connected right foot disability. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain all VA treatment records for the Veteran dated from June 2017 to the present. 2. Upon securing all records, schedule the Veteran for a VA examination in order to afford the Veteran a VA examination with a qualified physician to determine the current severity of the service-connected Achilles tendon rupture with calcaneal spur of the RIGHT foot. Access to the virtual claims folder, including a copy of this remand, must be provided to the examiner for review. All indicated testing should be conducted. Address range of motion, painful motion (and at what point it starts), additional loss of motion after repetitions, and functional loss due to pain. THIS INFORMATION MUST BE DERIVED FROM JOINT TESTING FOR PAIN ON BOTH ACTIVE AND PASSIVE MOTION, IN WEIGHT-BEARING, AND NONWEIGHT-BEARING, IN COMPARISON WITH THE OTHER ANKLE. The examination report must confirm that all such testing has been made and reflect those testing results. The examiner should report whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. Furthermore, any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. ANY ADDITIONAL IMPAIRMENT ON USE OR IN CONNECTION WITH FLARE-UPS SHOULD BE DESCRIBED IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS. THE EXAMINER SHOULD SPECIFICALLY DESCRIBE THE SEVERITY, FREQUENCY, AND DURATION OF FLARE-UPS; NAME THE PRECIPITATING AND ALLEVIATING FACTORS; AND ESTIMATE, PER THE VETERAN, TO WHAT EXTENT, IF ANY, SUCH FLARE-UPS AFFECT FUNCTIONAL IMPAIRMENT. This query should be accomplished regardless of whether the Veteran is experiencing a flare-up at the time of testing or not. 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. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The RO, prior to adjudication of the claim, should ensure that the examination is in compliance with the aforementioned Board directives. If not, return the examination for compliance, or explain why the aforementioned could not be satisfied and document the record accordingly. 4. After the above development has been completed, re-adjudicate the claim, to include extra-schedular consideration. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should 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 matter 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). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).