Citation Nr: 18161273
Decision Date: 12/31/18	Archive Date: 12/31/18

DOCKET NO. 12-26 236
DATE:	December 31, 2018



REMANDED

The claim of entitlement to a disability rating higher than 10 percent, for limited motion of the right ankle, is remanded.

The claim of entitlement to a disability rating higher than 20 percent, for right foot disability, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1976 to August 1980.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO).  In September 2017, the Board remanded this appeal for additional medical inquiry.  

Another remand is warranted for additional medical inquiry into the increased rating claim for right ankle disability.  The intertwined increased rating claim for right foot disability must be remanded as well.  See Smith v. Gober, 236 F.3d 1370 (Fed.Cir.2001).  Further, the latter claim must be remanded because the RO did not readjudicate the issue in a supplemental statement of the case (SSOC) following development conducted pursuant to the Board’s September 2017 remand.           See 38 C.F.R. §§ 19.31, 20.1304(c) (2018).       

Pursuant to the remand, the Veteran underwent VA examination in November 2017.  In the report, the examiner noted complaints of weekly flare ups of right ankle disability.  The examiner found that she was unable to say without mere speculation whether there were any functional limitations during flare ups.  An addendum opinion should be provided with regard to this particular issue.           See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (“[b]ecause the VA examiner did not...estimate the [V]eteran’s functional loss due to flares based on all the evidence of record-including the [V]eteran’s lay information-or explain why she could not do so, the...examination was inadequate.”).  In an addendum opinion, the examiner should provide additional commentary regarding the full extent of disability, particularly during flare ups, and an estimate regarding the severity of the limitations of mobility.   

The matter is REMANDED for the following action:

1. Include in the claims file any VA medical evidence that is not currently of file.  

2. Return the case to the VA examiner who conducted the September 2017 examination, or to a suitable substitute.  After reviewing the claims file and examining the Veteran, the examiner should comment on limitation experienced during flare ups of the right ankle disability.  

The examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran.  The examiner must either estimate functional loss due to flares based on all the evidence of record, including the Veteran’s lay information, or explain why an estimate cannot be made.  The examiner’s determination in this regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.       See Sharp, supra. 

3. Readjudicate the claims on appeal once the foregoing development has been conducted.  If the claims are not granted in full, issue to the Veteran a SSOC.  



 

CHRISTOPHER MCENTEE

Acting Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	S.Sellers, Associate Counsel