Citation Nr: 18143691 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 10-08 414A DATE: October 23, 2018 REMANDED Entitlement to an initial disability rating in excess of 10 percent for arthritis of the left ankle is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from October 1972 to October 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from Decision Review Officer (DRO) decisions dated in February 2009 and August 2016. In decisions dated in June 2011 and February 2016, the Board remanded the case to the Agency of Original Jurisdiction for additional development and adjudication. The case has since been returned to the Board for appellate review. The February 2009 DRO decision granted entitlement to service connection for left foot strain (claimed as left ankle and left foot disability) and assigned a nocompensable evaluation effective from October 30, 1995. A subsequent June 2009 DRO decision increased the disability rating to 10 percent effective from May 7, 2009; a March 2010 DRO decision granted an earlier effective date of February 25, 2009 for the 10 percent rating; and an October 2014 DRO Decision increased the rating to 20 percent effective February 25, 2009. The June 2011 and February 2016 Board decisions addressed the issue of whether an initial increased rating was warranted for the Veteran’s left foot strain. The February 2016 Board decision adjudicated this issue, but also determined that the Veteran’s left ankle disorder that was contemplated in the February 2009 rating decision’s grant of service connection for left foot strain was separate and distinct from the service-connected left foot disability. Consequently, the Board remanded the issue of whether the Veteran was entitled to a separate compensable rating for a left ankle disorder with instructions for the AOJ to adjudicate the matter. A subsequent August 2016 DRO decision granted entitlement to a separate 10 percent evaluation for arthritis of the left ankle, effective from October 30, 1995. The issue regarding whether the Veteran is entitled to an initial disability rating in excess of 10 percent for his left ankle disability was then certified to the Board in December 2016. Thereafter, a June 2017 Board decision denied the Veteran's increased rating claim for his left ankle disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Order, the Court vacated the Board's decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). 1. Entitlement to an initial disability rating in excess of 10 percent for arthritis of the left ankle is remanded. In the Joint Motion, the parties determined that the Board had erred in part by relying on an October 2016 VA examination to evaluate the Veteran’s left ankle disability. The Joint Motion stated that this examination was inadequate as it did not indicate whether the range of motion measurements were based on active or passive motion, or if they were performed while weight-bearing. 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. Correia v. McDonald, 23 Vet. App. 158, 168-69 (2016). The Joint Motion instructed the Board to obtain another VA examination that adequately addresses the requirements of Correia. Therefore, a remand is necessary to provide the Veteran with a VA examination concerning his left ankle disability. The matter is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his left ankle disability. The AOJ should also secure any outstanding, relevant VA medical records, to include records from the Philadelphia VA Medical Center dated since October 2016. 2. After the preceding development in paragraph 1 is completed, provide the Veteran with a VA examination to ascertain the current severity and manifestations of his service-connected arthritis of the left ankle. The claims file must be made available to the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. For the Veteran's arthritis of the left ankle, the examiner should report all signs and symptoms necessary for rating the disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees and test the range of motion in (1) active motion, (2) passive motion, (3) weight-bearing, and (4) nonweight-bearing. This testing must be conducted for both the joint in question and any paired joint. 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 this is so. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including limitation of motion) due to these factors. In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. In this regard, even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffers during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why he or she could not do so. The examiner should also indicate whether the Veteran has marked or moderate ankle limitation of motion; ankylosis of the ankle; ankylosis of the subastragalar or tarsal joint; malunion of the os calcis or astragalus; or astragalectomy of the ankle. The examiner is also asked to evaluate any scars associated with the Veteran's arthritis of the left ankle. Gayle Strommen Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel