Citation Nr: 1805079 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-23 485 ) 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 service-connected right ankle disability. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The appellant is a Veteran who served on active duty in the Army from September 2003 to February 2004 and from August 2005 to December 2006. Thereafter, she had additional service in the Army Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This issue was before the Board in September 2016 when it was remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, a new examination and opinion is necessary to ensure there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. This case was remanded for an examination in September 2016. The Board finds the March 2017 VA examination and opinion obtained on remand to be inadequate. Specifically, the United States Court of Appeals for Veterans Claims (Court) found the final sentence of 38 C.F.R.§ 4.59 (2017) 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. See Correia v. McDonald, 28 Vet. App. 158 (2016). Although the March 2017 VA examiner noted range of motion findings for the right ankle (and the opposite left ankle), it is not clear whether this was active or passive range of motion, in weight bearing or nonweight bearing. After obtaining updated treatment records, the Veteran should be scheduled for a new VA examination. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that she identify the provider(s) of any additional treatment or evaluation she has received for her right ankle, and to provide any releases necessary for VA to secure such records of treatment or evaluation. Obtain complete records of all such treatment or evaluation from all sources identified by the Veteran. 2. Secure for the record updated relevant treatment records from the Veteran's local VA Medical Center (dated from June 2017 to the present). 3. After the above records development is completed, schedule the Veteran for a VA examination to determine the current severity of her service-connected right ankle disability. The claims file must be made available to and reviewed by the examiner prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examination must be conducted in accordance with the current disability benefits questionnaire or examination worksheet applicable to the disability. Ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the right ankle must be conducted. 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 examiner must also provide an opinion concerning the functional impairment of the Veteran's service-connected right ankle disability. The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Upon completion of the addendum opinion, the AOJ should review the examiner's report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any necessary corrective action. 38 C.F.R. § 4.2 (2017). 5. Upon completion of the above actions, readjudicate the claim. If the decision is not granted to the Veteran's satisfaction, issue a supplemental statement of the case and allow the Veteran and her representative the opportunity to respond. Thereafter, this issue should be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. See 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 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).