Citation Nr: 18156792 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-41 718 DATE: December 11, 2018 REMANDED The claim for entitlement to an initial, compensable rating prior to July 23, 2013, and a rating greater than 10 percent from that date, for left ankle status post probable old medial malleolar erosion injury, with calcaneal spur (left ankle disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1975 to July 1983, from November 1990 to April 1991, and from February 2001 to October 2001. This appeal to the Board of Veterans’ Appeals (Board) initially arose from an August 2013 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) granted service connection and assigned an initial 0 percent (noncompensable) rating for the Veteran’s left ankle disability, effective October 14, 2011. In July 2014, the Veteran filed a notice of disagreement (NOD) with the assigned rating. In July 2016, the RO issued a rating decision assigning a 10 percent rating for the Veteran’s left ankle disability, effective July 23, 2013. On the same date, the RO also issued a statement of the case (SOC) reflecting the continued denial of an initial, compensable rating for the disability. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in August 2016. As the claim on appeal emanated from a request for a higher initial rating following the award of service connection, the Board has characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disabilities). Moreover, although the RO awarded a higher rating for the Veteran’s left ankle disability from July 23, 2013, as higher ratings for the disability are available before and after this date, the Board has now characterized the appeal to encompass requests for higher ratings at each stage. See Fenderson, supra; AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the claim on appeal is warranted. In connection with the higher ratings claim on appeal, the Veteran was last afforded a VA contract examination for evaluation of his service-connected left ankle disability in August 2013. Subsequently, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016), a case involving evaluation of a knee disability. In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing, “wherever possible,” for pain on both active and passive motion, and in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia, 28 Vet. App. at 168-70. Such testing must be accomplished in conjunction with the examination herein requested. Additionally, the Board notes that the August 2013 examiner reported that the Veteran has flare-ups that impact the function of the Veteran’s ankle but described the impact of those flare-ups as unknown. The examiner did not address the frequency, duration, characteristics, severity and functional loss due to flare-ups, as required by the Court’s decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, on remand, the AOJ should arrange for the Veteran to undergo VA examination of the left ankle, with any necessary testing to address the concerns discussed by the Court in Correia and Sharp. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of his claim. See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include any outstanding records of evaluation and/or treatment of the Veteran from the Central Alabama VA Healthcare System. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. The AOJ’s adjudication of the claim should include consideration of whether any, or any further, staged rating of the disability is warranted. The matter is hereby REMANDED for the following action: 1. Obtain from the Central Alabama VA Healthcare System all outstanding records of evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159 regarding requests for records from federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo VA left ankle examination, by an appropriate clinician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing (expressed in degrees) of the left ankle on both active motion and passive motion and in both weight-bearing and non-weight-bearing. The same range of motion testing should also be accomplished for the right ankle (for comparison purposes). 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 so state and explain why. On range of motion testing, the examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the left ankle. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, if the Veteran is not examined during a flare-up, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the left ankle 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. The examiner should also indicate whether there is any ankylosis of the left ankle and, if so, whether it is in plantar flexion or dorsiflexion and to what degree. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include consideration of whether any, or any further, staged rating of the left ankle disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacqulyn Lane, Associate Counsel