Citation Nr: 20042499 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 16-31 158 DATE: June 24, 2020 REMANDED Entitlement to a rating in excess of 10 percent for residuals of a left ankle fracture is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1948 to September 1949 and September 1950 to November 1951. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In accordance with his request, the Veteran was scheduled for a Board hearing before a Veterans Law Judge in March 2019; however, he failed to report for it. He has not offered good cause for such failure or otherwise requested that it be rescheduled. Therefore, his request for a Board hearing is considered withdrawn. 38 C.F.R. §§ 20.702(d), 20.704(d). In an April 2019 decision, the Board denied the Veteran’s claim for an increased rating for his left ankle disability and he subsequently appealed such denial to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the parties to this appeal entered into a Joint Motion for Remand (Joint Motion) in which they moved the Court to vacate and remand the Board’s denial. In a December 2019 Order, the Court granted the parties’ Joint Motion and the case now returns for further appellate review. Entitlement to a rating in excess of 10 percent for residuals of a left ankle fracture. As noted in the Joint Motion, the parties determined that further clinical data must be obtained before the Veteran’s claim for an increased rating for his left ankle disability may be properly adjudicated as the April 2015 VA examination relied upon in the April 2019 decision did not include range of motion findings for pain on passive motion or for the opposite undamaged joint, and did not adequately address functional loss following repetitive use, to include repeated use over time. See Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include testing for pain on both active and passive motion, in both weight-bearing and nonweight-bearing (if applicable) positions, and, if possible, recording the range of motion of the opposite undamaged joint); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (outlining VA examiners’ obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up and to use this information to characterize additional functional loss during flare-ups). Accordingly, the claim must be remanded to schedule the Veteran for a new VA examination so that this clinical data may be obtained. The matter is REMANDED for the following action: Afford the Veteran an appropriate VA examination to determine the nature and severity of his left ankle disability. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should provide a full description of the disability. The examiner should record the range of motion of the left ankle observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing, and for the opposite undamaged joint (i.e., right ankle) in terms of degrees, if possible. 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 without resorting to speculation. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use, to include repeated use over time. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, to include repeated use over time, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided without resorting to speculation. If the Veteran endorses experiencing flare-ups of his left ankle disability, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner also should comment upon the functional impairment resulting from the Veteran’s left ankle disability A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, 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.