Citation Nr: 18158279 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 08-23 090A DATE: December 14, 2018 REMANDED Entitlement to a rating more than 40 percent for a left ankle disability for the period beginning August 1, 2012 is remanded. Entitlement to special monthly compensation (SMC) based on loss of use of the left foot is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to March 1984. In May 2012, the Veteran appeared at a hearing held at the Regional Office (RO) before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In June 2013, the Board granted a 20 percent rating for a left ankle disability for the period of July 31, 2007 through April 3, 2008; granted a 20 percent rating for a left ankle disability for the period of May 1, 2009 through February 10, 2010; and granted entitlement to a 40 percent rating for a left ankle disability for the period of November 1, 2011 through April 19, 2012. The Board also remanded the issues of entitlement to a rating greater than 20 percent for a left ankle disability for the period beginning August 1, 2012 and entitlement to a total disability rating based on individual unemployability (TDIU). In January 2014, the RO implemented the Board’s June 2013 decision. It also increased the rating for a left ankle disability to 40 percent, effective August 1, 2012. The RO apparently considered this a full grant of the benefit sought as the issue was not addressed in the July 2014 supplemental statement of the case. In October 2014, the Board again remanded the Veteran’s appeal for additional development. In August 2017, the Board denied entitlement to a rating more than 40 percent for a left ankle disability for the period beginning August 12, 2012 and also denied entitlement to a TDIU. A July 2018 Court of Appeals for Veterans Claims (Court) order vacated the Board’s decision with respect to the increased rating claim, and adopted a Joint Motion for Partial Remand (JMPR) for reconsideration of the Veteran’s claim as to that issue. The Court noted that the Board’s denial of entitlement to a TDIU was to remain undisturbed. The Court further noted that entitlement to SMC based on loss of use of the left foot was reasonably raised by the record. Therefore, the issues have since been recharacterized above and have been returned to the Board for further consideration. 1. Entitlement to a rating more than 40 percent for a left ankle disability for the period beginning August 1, 2012 is remanded. As mentioned above, the Court remanded this issue because the Board erred by failing to provide an adequate statement of reasons or bases for its determinations and for noncompliance with the findings of Stegall v. West, 11 Vet. App. 268, 271 (1998) because the examiner to failed to provide a complete rationale for any opinions expressed. In this regard, it was noted that the May 2017 VA examiner marked “x” in the “No” box in response to the question “[d]ue to the Veteran’s ankle condition, is there functional impairment of an extremity such that no effective functions remain other than which would be equally well served by an amputation with a prosthesis?” The May 2017 examiner provided no explanation as to how he arrived at the conclusion that there is no functional impairment in the Veteran’s left ankle such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Thus, a new VA ankle examination and medical opinion is necessary in this instance. 2. Entitlement to special monthly compensation (SMC) based on loss of use of the left foot is remanded. The Court also found that the issue of entitlement to SMC based on the loss of use of the left foot was reasonably raised by the record. Specifically, during a May 2017 VA examination, the Veteran stated that his past surgical procedures “took away the pain,” but his foot is now partially numb and he is unable to bend it. He also stated that his left leg was now shorter than his right leg due to surgical procedures and that he limps as a result and must use “multiples insoles” in his shoe. He complained that he is unable to “release [his] foot” or “relax the muscles,” and stated that “[i]f it [was] only cut off [he] could get relief,” and explained that he has “to suppress this urge everyday all day.” In addition, the VA examiner noted that the Veteran was unable to perform range of motion testing because his ankle fused. The examiner further noted that the Veteran suffers from “[l]ess movement than normal due to ankyloses, adhesions, etc., [w]eakened movement due to muscle or peripheral nerve injury, etc., [i]nstability of station, [d]isturbance of locomotion, [i]nterference with sitting, [i]interference with standing.” As the increased rating claim is being remanded for a new VA ankle examination, the same examiner should provide an opinion as to whether the Veteran has loss of use of the foot under the applicable criteria. It is noted that VA law provides that loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350(a)(2)(i) (2017). The matters are REMANDED for the following action: 1. Forward the entire electronic claims file to a suitably qualified VA examiner for a VA examination to determine the current severity of the Veteran’s service-connected left ankle disability. The entire claims file must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must also opine as to whether no effective function of the left foot remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The examiner should provide all additional findings, along with a complete rationale for any opinions provided. All prior reports should be reconciled, as necessary. 2. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review any report to ensure that it is in complete compliance   with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel