Citation Nr: 18145153 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 04-21 195 DATE: October 30, 2018 REMANDED Entitlement to a rating in excess of 20 percent for left ankle strain with residual left ankle extensor tendonitis is remanded. REASONS FOR REMAND The Veteran served in the U.S. Army on active duty from September 1977. Following an appeal to the Court of Appeals for Veterans Claims (Court), a partial remand was granted by the Court so that the Board could take action consistent with a Joint Motion filed by the party’s motion in June 2018. This remand is in accord with the directives provided in that motion. Entitlement to a rating in excess of 20 percent for left ankle strain with residual left ankle extensor tendonitis. With regard to the Veteran’s claim for entitlement to an increased rating for his left ankle disability, a remand is necessary in order to provide him with an adequate VA examination. The Veteran was provided with a VA examination in April 2016 in which the examiner noted the Veteran experienced left ankle pain with weightbearing, exerted objective evidence of tenderness or pain on palpation and had disturbance of locomotion. However, the examiner was unable to say whether pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability with repeated use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011) (explaining that the Board should determine the amount of additional range of motion loss a veteran experiences when pain causes functional loss after repeated use or during flare-up periods). Since then, the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner’s opinion concerning additional functional loss with repeated use over time of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court of Appeals for Veterans Claims held that “before the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.” See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Thus, in light of the Court’s determination in Sharp, the Board finds that this matter must be remanded for a new VA examination and opinion addressing the issue of limitation of motion during flare-ups and repeated use over time. The matter is REMANDED for the following action: 1. Obtain any and all updated VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination to determine the severity of his left ankle disability. The record, including a copy of this REMAND, should be made available to and reviewed by the examiner. In addition, the examiner should thereafter provide VA with the following information in accordance with the Court's holding in Sharp: (a.) The examiner must test the range of motion of the left ankle (i.e., dorsiflexion, and plantar flexion) in active motion, passive motion, weight-bearing, and non-weight-bearing and compare these test results to the range of motions of the right ankle in active motion, passive motion, weight-bearing, and non-weight-bearing. (b.) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. (c.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. The examiner must provide a complete rationale for all opinions and conclusions reached. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be re-adjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel