Citation Nr: 20054499 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 11-24 898 DATE: August 18, 2020 REMANDED Entitlement to an increased rating higher than 10 percent for chronic left ankle sprain is remanded. Entitlement to an increased rating higher than 10 percent for left ankle instability is remanded. Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Marine Corps from November 1990 to May 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2010 and September 2012 rating decisions of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in June 2017. The Board had remanded the claim several times before ultimately denying the claim for increased ratings for chronic left ankle sprain and left ankle instability in June 2019. In June 2019, the Board also remanded the issue of service connection for sleep apnea, to include as secondary to PTSD. The Veteran appealed the Board’s decision insofar as it denied the increased ratings for chronic left ankle sprain and left ankle instability. Pursuant to a joint motion for partial remand (JMPR), the U.S. Court of Appeals for Veterans Claims (Court) vacated the Board’s June 2019 decision and remanded the case back to the Board. 1. Entitlement to an increased rating higher than 10 percent for chronic left ankle sprain is remanded. The JMPR found that while the Veteran had undergone multiple VA examinations addresing his chronic left ankle sprain in July 2014, September 2016, and December 2017, all of the examinations were deficient in some respect. Specifically, it was determined that none of the VA examinations regarding the Veteran’s chronic left ankle sprain complied with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) (did not contain passive range of motion measurements/pain on weight-bearing testing); or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (the examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups; or indicate that any speculation was due to lack of knowledge within the medical community.). 2. Entitlement to an increased rating higher than 10 percent for left ankle instability is remanded. The JMPR found that the Board did not adequately define the criteria for determining whether the Veteran’s left ankle instability was not more than slight. Specifically, it was mentioned that the Board should consider the Veteran’s hearing testimony in June 2017 that he would roll his ankle pretty frequently, and the notations on VA examinations in July 2014 and December 2017 that the Veteran used a cane. Given that the case is being remanded for another VA examination to address the chronic left ankle sprain, the examination also should address the present severity of the Veteran’s left ankle instability. 3. Entitlement to service connection for sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. The AOJ has not had the opportunity to complete the directives of the Board’s June 2019 remand addressing the issue of entitlement to service connection for sleep apnea; thus this matter is remanded again to give the AOJ the chance to complete any remaining development and, if necessary, issue a supplemental statement of the case. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected chronic left ankle sprain and left ankle instability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner also must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the issue of service connection for sleep apnea, to include as secondary to PTSD. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.