Citation Nr: 18159630 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 10-17 091 DATE: December 19, 2018 ORDER Entitlement to a rating in excess of 10 percent for status post left wrist fracture is denied. REMANDED Entitlement to a rating in excess of 10 percent for status post right ankle fracture with degenerative joint disease is remanded. FINDING OF FACT The Veteran’s left wrist has not been ankylosed at any point in the appeal period. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for status post left wrist fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5214, 5215. REASONS AND BASES FOR FINDING AND CONCLUSION A 10 percent rating is currently assigned for the Veteran’s left wrist disability under Diagnostic Code 5215, which relates to limitation of motion of the wrist. A 10 percent rating is the highest schedular rating available for limitation of motion of the wrist. As a result, the only diagnostic code that potentially provides for a higher rating than the 10 percent rating currently assigned is Diagnostic Code 5214, which relates to ankylosis of the wrist. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Shipwash v. Brown, 8 Vet. App. 218, 221 (1995); Lewis v. Derwinski, 3 Vet. App. 259 (1992). Here, there is no evidence the Veteran’s left wrist has been ankylosed at any point the appeal period. October 2016 and July 2018 VA examiners both reported there is no ankylosis of the Veteran’s left wrist. The Veteran was able to complete initial range of motion testing and repetitive-use testing during both examinations, clearly establishing he retains some range of motion in his left wrist. Thus, a higher rating is not warranted under Diagnostic Code 5215. In reaching this conclusion, the Board acknowledges it previously remanded the Veteran’s increased rating claim for the left wrist for a new examination in light of the holding in Correia v. McDonald, 28 Vet. App. 158 (2016); however, upon further review, a remand for a new examination is unnecessary because a higher rating requires a finding of ankylosis, which has not been shown to be present because of the Veteran’s ability to complete range of motion testing during the October 2016 and July 2018 VA examinations. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (holding a remand for a new wrist examination to assess range of motion loss in consideration of the factors outlined in 38 C.F.R. §§ 4.40, 4.45, and 4.59 is unnecessary when a higher rating under Diagnostic Code 5215 requires a finding of ankylosis). An additional remand for further range of motion testing of the left wrist would only serve to delay the adjudication of the Veteran’s claim and would not provide the basis for a higher rating. In sum, the Veteran is entitled to the highest schedular rating available for limitation of motion of the left wrist. Although he experiences painful motion, the very fact that he retains motion in the left wrist establishes a higher rating is not warranted. Thus, his appeal for a rating in excess of 10 percent for his service-connected left wrist disability must be denied. REASONS FOR REMAND In contrast to the left wrist, a higher rating is available for the Veteran’s service-connected right ankle disability. See 38 C.F.R. § 4.71a, Diagnostic Code 38 C.F.R. § 5271 (providing a 20 percent rating for marked limitation of motion). As the July 2018 VA examination report does not include all the range of motion testing required by 38 C.F.R. § 4.59, a remand is necessary to ensure compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Correia, supra. Additionally, the July 2018 VA examiner reported the Veteran does not experience flare-ups with regard to his service-connected right ankle disability, which is inconsistent with the previous examination in July 2016. The Board finds a rationale addressing this inconsistency is necessary to make an informed decision on the Veteran’s increased rating claim for his service-connected right ankle disability. The matter is REMANDED for the following action: Schedule the Veteran for a new VA ankle examination to assess the current severity of his service-connected right ankle disability. The selected examiner should conduct all indicated tests and studies, to include range of motion testing. The ankles should be tested in both active and passive motion and in weight-bearing and nonweight-bearing. 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 explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). If the examiner determines the Veteran does not experience flare-ups, the examiner must provide a rationale addressing the inconsistency with the prior examination report in July 2016 (i.e. whether the prior notation of flare-ups was in error and/or whether the previously noted flare-ups have since resolved). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel