Citation Nr: 20042220 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 17-12 168 DATE: June 22, 2020 REMANDED Entitlement to a rating in excess of 10 percent prior to January 9, 2015, and in excess of 20 percent thereafter, for right ankle Achilles tendonitis is remanded. Entitlement to a rating in excess of 10 percent prior to January 9, 2015, and in excess of 20 percent thereafter, for left ankle Achilles tendonitis is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1986 to August 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, these matters were previously before the Board in September 2018, when they were remanded for further development. During the pendency of the appeal, a January 2017 rating decision granted an increased 20 percent rating for bilateral ankle sprain with Achilles tendonitis, effective January 9, 2015. See January 2017 Rating Decision – Narrative. As this rating is not the maximum allowable, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to a rating in excess of 10 percent prior to January 9, 2015, and in excess of 20 percent thereafter for right ankle Achilles tendonitis is remanded. 2. Entitlement to a rating in excess of 10 percent prior to January 9, 2015, and in excess of 20 percent thereafter for left ankle Achilles tendonitis is remanded. In September 2018, the Board remanded the issues to obtain a VA examination. Specifically, the Board asked the VA examiner to test range of motion in both the Veteran’s ankles in active motion, passive motion, weight-bearing and nonweight-bearing. The examiner was further asked to address whether the Veteran had ankylosis, to include a detailed description thereof, and to provide information about functional loss due to flare-ups based on all of the evidence of record, including lay information. See September 2018 BVA Decision. After a review of the record, the Board notes that the Veteran was afforded a VA examination in June 2019. However, the Board finds that the June 2019 VA examiner did not substantially comply with the September 2018 Board remand, and as such, additional development is needed before the Veteran’s claims can be decided. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted above, the Veteran was afforded a VA examination in June 2019. During the examination, the Veteran’s bilateral ankle disabilities were found to be manifested by pain on passive range of motion testing and in non-weight bearing. The Veteran reported severe daily flare-ups, which limited his mobility and lasted up to 24 hours. The examiner diagnosed the Veteran with bilateral tendonitis, osteoarthritis of the left ankle, and residuals of right ankle sprain with Achilles tendonitis. The examiner stated that she was unable to perform range of motion testing because the Veteran did not move his ankles during the examination. To this end, the examiner reported that the Veteran was able to ambulate, and that strength and stability testing were normal. The examiner noted that the Veteran had stated that he was not able to move his ankles and that he had presented to the examination wearing bilateral ankle braces and using a scooter. However, the examiner stated that the Veteran purchased the scooter on his own and used the device to alleviate his ankle pain. The examiner found evidence of severe pain on palpation over the Veteran’s entire ankles. In addition, the examiner stated that pain significantly limited the Veteran’s functional ability with repeated use over time but was unable to describe functional loss in terms of range of motion without resorting to mere speculation. The examiner stated that the medical community at large was unable to quantify limited range of motion because there were too many contributing factors to be taken into consideration, to include activity and severity of pain. However, the examiner reported that additional loss in range of motion could be expected during repetitive use and when suffering from pain. Muscle strength and joint stability testing was normal and no muscle atrophy or ankylosis was found. In addition, the examiner reported that the Veteran had bilateral achilles tendinitis or achilles tendon rupture, which manifested as thrombotic thrombocytopenic purpura over his posterior ankles. Lastly, the examiner noted that the Veteran’s right ankle disability was manifested by moderate left tibiotalar osteoarthritis and the left ankle disability was manifested by plantar calcaneal spur and soft tissue calcifications adjacent to the medial malleolus with narrowing of medial aspect of the ankle mortise, which was confirmed by imaging studies. See July 2019 C&P examination. The Board notes that the Veteran and his wife submitted a letter, dated in May 2020, stating that the June 2019 examiner failed to accurately report the Veteran’s symptoms. Specifically, the Veteran stated that he moved his ankles as far as he could during the examination but reported that his range of motion was severely limited due to excruciating pain. The Veteran further stated that he ambulated with a limp and that he had purchased the scooter because his ankle pain occasionally prevented him from getting out of bed and standing up. In addition, the Veteran reported that the examiner’s findings with respect to atrophy, joint stability testing, and ankylosis were inaccurate and inconsistent with the other medical evidence of record. The Veteran specifically noted that he had been diagnosed with endstage ankle arthritis and that his only remaining option for relief was fusion surgery. See May 2020 Correspondence. In this regard, the Board notes that the June 2019 VA examiner reported that the Veteran did not move his ankles when she attempted to conduct range of motion testing. To this end, the examiner appears to have concluded that the Veteran was able to ambulate based on normal strength and stability testing and his independent acquisition of the scooter. See July 2019 C&P examination. However, the Board notes that other medical evidence of record supports the Veteran’s statements regarding the severity of range of motion limitations in his ankles. Specifically, a private treatment record dated in July 2016 shows that the Veteran’s ankles had a severely limited range of motion and notes that he was unable to actively dorsiflex, plantarflex, supinate, or pronate either ankle. An x-ray of the Veteran’s ankles revealed severe bilateral tibiotalar arthritis. See March 2017 Medical Treatment Record – Non-Government Facility. In addition, a private treatment record dated in May 2018 shows that the Veteran was unable to plantar or dorsiflex his bilateral feet or ankles and his foot inversion and eversion was found to be less than 5 degrees bilaterally. See September 2018 Medical Treatment Record – Non-Government Facility. The Board further notes that the June 2019 VA examiner did not address the lay evidence of record, to include statements indicating that the Veteran cannot stand for any significant amount of time, walk on a flat surface, or negotiate stairs or hills without a significant amount of pain. See January 2013 Correspondence; May 2018 Hearing Transcript, pages 10, 17. The Board recognizes that that the June 2019 examiner noted functional impairment to include limited mobility, however, the examiner did not provide any details regarding such limitation or reference any lay evidence of record. The Board also notes that the Veteran’s medical records show evidence of possible ankylosis that was not addressed by the June 2019 VA examiner. To this end, an October 2016 VA examiner indicated that the severity of the Veteran’s right ankle ankylosis was in good weight-bearing position and reported that the Veteran’s left ankle ankylosis was in an inversion deformity and in good weight-bearing position. See October 2016 C&P examination. In addition, a May 2018 private treatment record shows that the Veteran had been diagnosed with bilateral ankle arthritis and required bilateral ankle stabilizing orthosis braces to ambulate. See September 2018 Medical Treatment Record – Non-Government Facility. In addition, the Veteran has been diagnosed with bilateral endstage arthritis, which has been confirmed by x-ray imaging results. See, e.g., March 2017 Medical Treatment Record – Non-Government Facility; October 2018 CAPRI. The Board notes that imaging results obtained during the June 2019 VA examination revealed moderate left tibiotalar osteoarthritis in the Veteran’s right ankle and a plantar calcaneal spur and soft tissue calcifications adjacent to his medial malleolus with narrowing of the medial aspect of the ankle mortise in his left ankle. Importantly, the June 2019 VA examiner’s findings suggest that the Veteran’s endstage chronic osteoarthritis has improved without surgery or alleviation of pain. See July 2019 C&P examination. Based on the foregoing, the Board finds that VA did not substantially comply with the September 2018 remand directive. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the remand). Moreover, during the December 2011 statement, the Veteran stated the he received treatment at the Newnan Clinic in Georgia in October 2011. See December 2011 VA Form 21-4138 Statement in Support of Claim. However, medical records from the Newnan Clinic, dated in or around October 2011, have not been associated with the claims file. As such, the Board finds that a remand is also required to obtain these records. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. Specifically, attempts should be made to obtain records for the Newnan Clinic in Georgia dated in or around October 2011. 2. After completion of the above development, schedule the Veteran for a VA ankle examination. The examiner should specifically test the range of motion of both ankles in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The examiner should specifically address whether the Veteran has ankylosis, and if so, describe that ankylosis in detail to include in degrees of plantar flexion; dorsiflexion; abduction, adduction, inversion or eversion deformity; and subastragalar or tarsal joint in good weight-bearing position and subastragalar or tarsal joint in poor weight-bearing position. In rendering an opinion, the examiner should specifically address the diagnoses of ankylosis and endstage arthritis noted in the medical evidence of record. See October 2016 C&P examination; March 2017 Medical Treatment Record – Non-Government Facility; September 2018 Medical Treatment Record – Non-Government Facility. The examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran. The examiner should elicit relevant information as to the Veteran’s flare-ups with a description of the additional functional loss, if any, the Veteran has during flares. The examiner should estimate the Veteran’s functional loss due to flares based on all the evidence of record-including the lay evidence or sufficiently explain why the examiner cannot do so. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, Attorney-Advisor 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.