Citation Nr: 20004746 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-05 575 DATE: January 21, 2020 REMANDED Entitlement to an initial rating in excess of 10 percent for a chronic right ankle sprain with degenerative joint disease (hereafter right ankle disability) is remanded. Entitlement to service connection for a right hip disability, to include right trochanteric bursitis, claimed as secondary to service-connected right ankle disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1977 to December 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2014 and March 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board denied the above issues on appeal. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of Veterans Affairs (Parties), vacated the September 2018 Board decision insofar as it denied the above issues, and remanded those matters to the Board for compliance with the JMR instructions. Moreover, the Parties agreed that, with respect to the rating in excess of 10 percent for a chronic right ankle sprain with DJD, the Board did not address whether the January 2016 VA examiner’s statement, that he could not opine whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repeated use over a period of time, complied with the Court’s decision with regard to the legal standard for a “mere speculation” opinion. Id. 1. Entitlement to an initial rating in excess of 10 percent for right ankle disability is remanded. The Parties agreed that the January 2016 VA examiner stated that he could not opine whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repeated use of the right ankle over a period of time, without supportive rationale. As such, this examination is inadequate, and given the amount of time that has since passed, a new examination is needed on remand. Any outstanding treatment records should also be secured. 2. Entitlement to service connection for a right hip disability, to include right trochanteric bursitis, claimed as secondary to service-connected right ankle disability, is remanded. In denying the claim for lack of a current disability, the Parties agreed that the Board failed to address the June 2013 private physician’s diagnosis of greater trochanteric bursitis. See JMR at 2. An examination is needed on remand to determine the nature and etiology of this disability. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of his claimed right hip disability, to include right trochanteric bursitis. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. All findings should be reported in detail. The examiner should address the following: (a) Diagnose any right hip disability present since February 2016, to include greater trochanteric bursitis (see June 2013 private treatment record). If no such disability is identified, the examiner must indicate whether the Veteran’s reported right hip pain causes any functional impairment. (b) For any disability diagnosed in part (a) or functional impairment identified, please opine on whether it is at least likely as not (a 50 percent or greater probability) that such disability: (1) had its onset in service or is otherwise related to service; (2) is proximately due to the service-connected right ankle disability; or (3) has been aggravated (worsened beyond natural progression) by his service-connected right ankle disability. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. Then schedule the Veteran for a VA examination to determine the nature and severity of his right ankle disability. The claims file should be made available to and should be reviewed by the examiner. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, (4) in non-weight-bearing, and (5) with range of motion of opposite undamaged joint. Please specify range of motion measurements in all areas outlined above. For each range of motion study conducted, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. 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. Please also provide an opinion describing functional impairment of the Veteran’s right ankle disability due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.