Citation Nr: 1803863 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-07 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent for a right ankle condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Neal, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1973 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In Correia v. McDonald, 28 Vet. App. 158, 170 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion (ROM) testing be conducted whenever possible in cases of joint disabilities. The Court specified that VA examination reports should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a test is not conducted, the examination should explain why such test was not necessary. The Veteran underwent a VA examination of his right ankle in November 2013. While the examination tested for pain during active motion, it did not test for pain with passive motion, weight-bearing, or nonweight-bearing. Therefore, the Board finds that the VA examination of record is inadequate under the standard set forth in Correia, supra, and that a remand is warranted for a VA examination that tests the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing motions, of the right ankle. Further, the Board acknowledges private treatment records reflecting the presence of ankylosing and arthritis of the right ankle. See July 2011 progress note from Dr. A.L.; February 2014 new patient office note from Dr. A.L. Therefore, in evaluating the current severity of the right ankle, the examiner must also conduct the necessary studies, including imaging studies, to confirm the reported ankylosing condition. The Board also acknowledges the Veteran's contention that his condition has worsened since the last VA examination. See December 2017 appellate brief. The Board notes that the examination, which took place in November 2013, is over 4 years old. Therefore, a new VA examination is also warranted due to evidence of a worsening condition. See 38 C.F.R. § 3.327 (a); Green v. Derwinski, 1 Vet. App. 121 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Finally, in readjudicating the issue, the RO must specifically consider whether a higher rating under Diagnostic Code 5270 for ankylosis of the right ankle is warranted. The Veteran is hereby notified that it is his responsibility to report for the requested examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158 and 3.655 (2017). Accordingly, the case is REMANDED for the following actions: 1. With any required assistance of the Veteran, obtain any outstanding VA and/or private medical records and associate them with the claims file. 2. Following completion of the above, afford the Veteran a VA examination to determine the current severity of the service-connected right ankle condition. The claims folder should be made available to the examiner for review prior to the examination, and the examiner should acknowledge such review in the examination report. Any indicated studies, including imaging studies, should be performed. As part of this examination, the examiner must evaluate the range of motion for pain in both active motion and passive motion, as well as in weight-bearing and nonweight-bearing scenarios for the ankles. The examiner must specifically identify the points, if any, at which pain begins. If any such test is not conducted, the examiner must explain why such test was not necessary. Further, the examiner must specifically address the reported ankylosing condition of the right ankle. In this regard, the Board draws the examiner's attention to the July 2011 progress note and February 2014 new patient office note from Dr. A.L. The examiner must also note whether there are further functional limitations due to pain, weakness, fatigue and/or incoordination. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare ups. Additionally, the examiner must state whether pain could significantly limit functional ability during flare-ups or when the right ankle is used repeatedly over a period of time. This determination must be expressed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. If the examiner cannot offer an opinion on functional limitations during flare-ups without resorting to speculation, the examiner must: a. Make it clear that he or she has considered all procurable assembled data, such as obtaining all tests and records that might reasonably illuminate the medical analysis, and; b. Explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. In this regard, it must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation of the individual examiner. A complete rationale must be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, the examiner must provide a rationale for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. Thereafter, readjudicate the issue remaining on appeal- entitlement to a rating in excess of 20 percent for a right ankle condition. In readjudicating the issue, the RO must specifically consider whether a higher rating under Diagnostic Code 5270 for ankylosis of the ankle is warranted. If the benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, 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). _________________________________________________ A. ISHIZAWAR 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).