Citation Nr: 20037025 Decision Date: 05/29/20 Archive Date: 05/29/20 DOCKET NO. 19-07 054 DATE: May 29, 2020 REMANDED The issue of a rating in excess of 10 percent for postoperative residuals, fracture, right tibia and fibula, claimed as a right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty served in the Army from November 1985 to April 1986. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2018 rating decision. Right Ankle Disability The Board finds that further development is necessary regarding the Veteran’s claim of a rating in excess of 10 percent for his right ankle disability. First, in the February 2019 VA Form 9, the Veteran stated that his last VA examination regarding his right ankle was in March 2017, and he requested a new VA examination to be scheduled. Second, in the May 2020 Appellate Brief, the Veteran asserted that his right ankle disability has worsened and was continuing to worsen. When evidence indicates that a service-connected disability is worse than it was at the time of a Veteran’s most recent VA examination, as is the case here, it is within VA’s duty to assist that he be afforded a new examination in order to accurately assess the current level of impairment. Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997). Therefore, a remand is warranted to properly assess the current level of impairment of the Veteran’s right ankle disability. The matters are REMANDED for the following action: 1. Obtain all treatment records from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the medical records of such treatment 2. Following the completion of the above, schedule the Veteran for an examination to determine the current severity of the Veteran’s right ankle disability. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Test the joint for range of motion and consider pain on both passive and active motion, in both weight-bearing and non-weight-bearing positions, including for the corresponding joint if appropriate. 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. b. The examiner should determine whether the right ankle disability is manifested by weakened movement, excess fatigability, incoordination, and/or pain after repetitive use over time and/or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use over time and during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Recent caselaw has held that the lack of opportunity to observe during a flare-up and/or after repeated use over time is an insufficient basis for not estimating the functional effects in terms of degrees of range of motion. If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. The examiner should also consider all lay statements submitted by the Veteran regarding his disorder. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.