Citation Nr: 18154773
Decision Date: 11/30/18	Archive Date: 11/30/18

DOCKET NO. 11-23 729
DATE:	November 30, 2018
REMANDED
Entitlement to a rating in excess of 10 percent for left ankle sprain is remanded.
Entitlement to a rating in excess of 10 percent for right ankle sprain is remanded.
REASONS FOR REMAND
The Veteran urges that his service-connected bilateral ankle sprains warrant higher ratings. 
In August 2017, the Board issued a decision denying these claims. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMR), the Court vacated the Board’s decision and remanded the case to the Board.
1. A rating in excess of 10 percent for left ankle sprain is remanded.
2. A rating in excess of 10 percent for right ankle sprain is remanded.
The parties to the JMR found that the Board erred when it found VA fulfilled the duty to assist the Veteran with respect to the adequacy of the May 2014 VA examination relied upon. Specifically, the Board did not sufficiently account for the precedents set in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158, 168 (2016) in its evaluation of the adequacy of that examination. 
The JMR orders that the Board do the following with respect to this deficiency:
(1) order a new examination with instruction to elicit and document information from Appellant regarding his flares’ severity, frequency, duration, or functional loss manifestations or indicate whether such information is available from the medical evidence of record; (2) either estimate Appellant’s functional loss due to flare ups based upon this information or provide an adequate explanation of the basis for a conclusion that a non-speculative opinion cannot be afforded; and (3) assure that the new examination also documents the results of testing for weight-bearing range of motion to the extent such tests can be conducted.
Accordingly, the matters are REMANDED for the following action:
Schedule the Veteran for an examination to assess the current severity of service-connected right and left ankle sprains. The examiner must test the Veteran’s ankles with regard to active motion, passive motion, with weight-bearing and without weight-bearing. The examiner must elicit and document information from the Veteran regarding his flares’ severity, frequency, duration, or functional loss manifestations or indicate whether such information is available from the medical evidence of record. To the extent possible, the examiner should estimate Veteran’s functional loss due to flare ups based upon this information.


If upon completion of the above action, the claim remains denied, the case should be returned after compliance with appellate procedure.

 
H. N. SCHWARTZ
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. RIPPEL