Citation Nr: 18154364 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 11-33 608 DATE: November 29, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for a right hip disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2007 to August 2010. This case previously came before the Board in October 2014 and June 2017. In May 2014, the Veteran testified at a videoconference hearing before the undersigned. A transcript of that hearing is of record. Since the most recent remand, the Agency of Original Jurisdiction (AOJ) issued a rating decision increasing the rating assigned to the Veteran’s right ankle disability from zero percent to 10 percent. Since an even higher initial rating is potentially available, however, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Unfortunately, new examinations are necessary before the Board may decide the remaining issues in this appeal. The June 2017 remand required that the AOJ arrange examinations to comply with Correia v. McDonald, 28 Vet. App. 158 (2016) (interpreting 38 C.F.R. § 4.59 as requiring testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing of the joint and, if possible, with the range of the opposite undamaged joint or an explanation for why such testing could not be conducted). Pursuant to the Board’s remand orders, the AOJ obtained a hip and thigh examination report, dated October 2017, and a second report concerning the examination of the ankles, apparently conducted the same day. Unfortunately, neither of the October 2017 reports comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). In that case, decided a few months after the Board’s remand, the United States Court of Appeals for Veterans Claims (Court) held that the examiner should estimate functional loss during a flare-up or explain why such an estimate cannot be provided when an examination does not take place during a flare-up. The Court further held that examiners have the affirmative duty to elicit information from the claimant about the condition of the relevant joint during flare-ups. Id. at 30. In both the hip and ankle examination reports, the examiner declined to describe the extent of limited functional ability during flare-ups on the grounds that any attempt to do so would require speculation. There is no indication that the examiner asked for the Veteran’s assistance in estimating the extent of limited motion, if any, during flare-ups. Moreover, although the October 2017 examination reports for the hips and ankles clearly attempted to comply with Correia by indicating whether or not pain was present during each of the testing methods described in 38 C.F.R. § 4.59, the examiner failed to include separate sets of test results recording the range of motion, in degrees, after testing using each of these methods. For these reasons, the Board must remand the hip and ankle claims to obtain new examination reports which comply with 38 C.F.R. § 4.59, Sharp, and Correia. The matters are REMANDED for the following action: 1. Obtain and associate with the claims folder copies of all records of the Veteran’s VA treatment since September 2018. 2. Schedule VA examinations to ascertain the current severity of the Veteran’s service-connected disabilities of the right hip and right ankle. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disabilities should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran’s right hip and right ankle, and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing, and the range of motion in the opposite, undamaged joint. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33, the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. 3. The AOJ must ensure that the examination reports requested above are in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Nye, Associate Counsel