Citation Nr: 1804709 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-08 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased rating in excess of 10 percent for chronic soft tissue strain of the right ankle. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Jurisdiction was subsequently transferred to the RO in St. Louis, Missouri. In October 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record and has been reviewed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the issue on appeal. The Veteran was last provided VA examinations in connection with his service-connected right ankle disability in June 2009. Subsequent to the June 2009 VA examinations, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. After reviewing the VA examination of record, the Board finds that it is incomplete and requires further medical guidance, in light of the recent holding in Correia. As the previous VA examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim. Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Prior to scheduling further examination, the AOJ should obtain and associate with the record all outstanding VA records. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records. 2. Then, schedule the Veteran for an appropriate VA examination to assess the current severity and manifestations of his right ankle disability. The record must be made available for review of the Veteran's pertinent medical history. All appropriate tests and studies must be performed, and all clinical findings must be reported in detail. The examiner is asked to specifically test the range of motion on both active and passive motion, and in weight-bearing and nonweight-bearing. The examiner should assess where pain begins on the Veteran's initial range of motion and upon repetitive testing. The examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Inquire as to periods of flare-up, and note the severity, frequency, and duration of any such flare-ups. The examiner must name the precipitating and alleviating factors. The examiner must express an opinion concerning whether there would be additional limits of functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of degree of additional range of motion loss. A complete rationale should be given for all opinions and conclusions expressed. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time for response before the claims file is returned to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2012). _________________________________________________ Cynthia M. Bruce 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).