Citation Nr: 20068167 Decision Date: 10/21/20 Archive Date: 10/21/20 DOCKET NO. 12-12 359 DATE: October 21, 2020 REMANDED Entitlement to a rating in excess of 10 percent, prior to January 10, 2016, for a left ankle disability is remanded. Entitlement to a rating in excess of 20 percent, from January 11, 2016, to March 18, 2016, for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active service from June 2005 to March 2007, and from March 2008 to July 2009, with additional periods of active service and active duty for training with the Army National Guard and Army Reserve. These matters were previously denied by the Board of Veterans Appeals (Board) in December 2018. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims and in an April 2020 Joint Motion for Partial Remand, the Court vacated those portions of the December 2018 Board decision that denied entitlement to a rating in excess of 10 percent, prior to January 10, 2016, and in excess of 20 percent as of January 11, 2016 to March 18, 2016, for a left ankle disability and remanded those issues to the Board for additional action consistent with the Court decision. In the Joint Motion for Partial Remand, the parties agreed that the Board erred by not considering whether referral for extraschedular rating consideration was warranted. The parties also agreed that previous VA examinations were inadequate as they did not comply with examination requirements. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). 1. Entitlement to a rating in excess of 10 percent, prior to January 10, 2016, for a left ankle disability is remanded. 2. Entitlement to a rating in excess of 20 percent, from January 11, 2016, to March 18, 2016, for a left ankle disability is remanded. Although the Board regrets the delay, additional development is needed prior to further adjudication of the claim. In the April 2020 Joint Motion for Partial Remand, the parties agreed that previous VA examinations, upon which the Board relied to deny higher ratings, were inadequate. A retrospective medical opinion may be necessary and helpful in cases when the evidence is insufficient for an adequate determination. Chotta v. Peake, 22 Vet. App. 80 (2008). To address the concerns of the parties to the Joint Motion, and because of deficiencies in previous VA examinations, the Board finds that further VA examination, to include retrospective medical opinions, is necessary. Furthermore, the April 2020 Joint Motion agreed that the Board should consider whether referral for extraschedular consideration is warranted. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for referral is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to make impractical application of regular schedular standards. Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the Regional Office (RO) must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular rating is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular rating does not contemplate the Veteran's level of disability and symptomatology, then the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. If that is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. The record shows left ankle instability with “profound effects on standing for long periods of time, walking, lifting equipment, and fall prevention” throughout both periods on appeal. Additionally, Diagnostic Code 5271 does not contemplate instability or “overall impairment,” only “limited motion.” That evidence suggests that the first two elements for referral are met. Extraschedular consideration is raised by the record, therefore the matter is remanded to the RO for appropriate review and referral to the Director, Compensation and Pension Service pursuant to 38 C.F.R. § 3.321(b)(1). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination of the left ankle. The examiner must review the claims file and should note that review in the report. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should provide a complete rationale for any opinions provided. The VA ankle examination must include range of motion testing expressed in degrees for active motion, passive motion, weight-bearing, and nonweight-bearing for both ankles. Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner should provide specific measurements regarding functional loss in terms of limitation of motion due to pain, weakened movement, excess fatigability, pain with use, incoordination, or on flare up. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. The examiner should state whether ankylosis is shown. The examiner should provide an opinion as to whether there is loss of use of the leg such that no effective function remains other than that which would be equally well served by an amputation stump at the site of election, with use of a suitable prosthetic appliance. The determination should consider remaining function and whether acts such as balance and propulsion could be accomplished equally well by an amputation with prosthesis. The examiner should provide opinions regarding the severity of the service-connected left ankle disability for each of two distinct appeal periods: the period prior to January 10, 2016 and the period from January 11, 2016, to March 18, 2016. The examiner should provide opinions to describe the degree of additional loss of range of motion due to pain following repetitive use over time during those periods. A complete rationale for any opinions should be provided. The Board recognizes the difficulty in making such determinations but requests that the examiner provide a best estimate based on the claims file and statements of the Veteran. 2. Then, refer the claims for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals 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.