Citation Nr: 1808392 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-03 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a disability rating higher than 10 percent for right ankle bursitis with strain and degenerative joint disease. 2. Entitlement to a total disability rating based on individual unemployability due to the service-connected disability (TDIU). ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, additional development is required prior to appellate review. Concerning the Veteran's claim for a disability rating higher than 10 percent for the service-connected right ankle bursitis with strain and degenerative joint disease, the Board has reviewed the Veteran's most recent VA examination findings from December 2017, and concludes that these findings do not meet the specifications of Correia v. McDonald, 28 Vet. App. 158, 168-169 (2016). Although range of motion was tested for the opposite undamaged joint and the examiner found no evidence of pain on passive motion, the examiner noted pain on weight bearing, but did not indicate whether range of motion testing was conducted in active motion, passive motion, weight-bearing and nonweight-bearing, as required by Correia. In Correia, the Court found that 38 C.F.R. § 4.59 requires that VA joint examinations must, where possible, include range of motion results for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Id. at 165. Further, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that a new VA examination is required. Given this, further examination is thus necessary under 38 C.F.R. § 3.159 (c) (4). When adjudicating the claims the AOJ should be mindful of the Court's holdings in DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011) regarding painful motion. The claim for entitlement to a TDIU is inextricably intertwined with the claim for increased rating for right ankle bursitis with strain and degenerative joint disease. Thus, adjudication of the TDIU claim is deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant ongoing VA treatment records dated since August 2017. If possible, the Veteran should submit these and any other pertinent record himself in order to expedite the case. 2. After the development requested above has been completed, schedule the Veteran for a VA examination to assess the current severity of his service-connected right ankle disability, to include any functional effects. The Veteran's claims file should be made available to and reviewed by the examiner, and he or she must indicate whether such review was accomplished. a) The examiner should determine the range of motion of the Veteran's right ankle in degrees. Range of motion testing must include both passive and active motion, and in weight-bearing and nonweight-bearing conditions, and the range of the opposite undamaged joint. It should be indicated whether and at what point during the Veteran's range of motion he experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. If the Veteran endorses flare-ups of symptoms the examiner must comment on the functional limitations of the right ankle during flare-ups, and the effect of pain on range of motion. If there is no flare-up at the time of the examination, the examiner is asked to opine on further functional limitations based on the Veteran's subjective complaints and history. b) The examiner should assess the impact of the Veteran's service connected right ankle disability, on his activities of daily living, including his occupational functioning. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner's report that she/ he cannot provide and opinion without resort to mere speculation is inadequate unless the examiner provides a rationale for that statement. 3. Then, readjudicate the Veteran's claims on appeal, to include the claim for entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).