Citation Nr: 18144597 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 13-24 956 DATE: October 25, 2018 REMANDED Entitlement to a higher initial rating for old post traumatic changes with arthritis of the left ankle, rated noncompensable prior to January 25, 2016 and 10 percent disabling since that date, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1985 to August 1985. This matter initially came before the Board of Veterans’ Appeals (Board) from a March 2012 rating decision. In March 2016, a Decision Review Officer assigned a 10 percent rating for the Veteran’s left ankle disability, from January 25, 2016. In June 2017, the Board denied an initial compensable rating, prior to January 25, 2016, and a rating higher than 10 percent, since that date, for the Veteran’s service-connected left ankle disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the Court set aside the Board’s June 2017 decision and remanded the case for readjudication in compliance with directives specified in a May 2018 Joint Motion filed by counsel for the Veteran and VA. Entitlement to a higher initial rating for old post traumatic changes with arthritis of the left ankle, rated noncompensable prior to January 25, 2016 and 10 percent disabling since that date, is remanded. While the Veteran was most recently afforded a VA examination regarding his service-connected left ankle disability in January 2016, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Specifically, the examination report does not contain passive range of motion measurements and pain on both weight-bearing and non weight-bearing testing for both the left and right ankle. Also, although the Veteran reported flare-ups of left ankle symptoms and the examiner stated that an opinion as to the extent of any additional functional impairment of the ankle during flare-ups could not be provided without resort to speculation, the examiner only explained that the Veteran would need to be examined during a flare-up, which does not comply with Sharp. Hence, a new VA examination should be conducted upon remand. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the South Texas Veterans Health Care System and are dated to March 2013. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for left ankle disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for left ankle disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records from the South Texas Veterans Health Care System for the period since March 2013; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination of the current severity of his service-connected left ankle disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the left ankle and the right ankle. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left ankle disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up. The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel