Citation Nr: 21001981 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 19-23 019 DATE: January 12, 2021 REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to an initial rating higher than 10 percent for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2003 to February 2006. He had prior Reserves service since at least 1993. Regarding the issue of entitlement to service connection for a left ankle disability, the Board finds that there was no substantial compliance with the Board’s September 2019 remand directives. In addition, the Board finds that a VA examination is necessary regardless of the Veteran’s duty status in April 1998. Notably, in its September 2019 remand, the Board noted that service treatment records dated in April 1998 noted that the Veteran sustained a left ankle injury; however, the Board determined that the Veteran’s duty status at the time was unknown. On remand, the Board directed the RO to verify all ACDUTRA and INACDUTRA dates for service in the ROTC program. While some documents added to the claims file subsequent to the Board’s remand suggest that the RO requested this information, no replies were associated with the claims file. Thereafter, in the August 2020 supplemental statement of the case, the RO simply noted that they were unable to obtain additional records. None of the additional documents reveal the Veteran’s duty status in April 1998. Furthermore, the Board finds that a VA examination is necessary regardless of the Veteran’s duty status. Notably, the Veteran had subsequent active duty service and a medical opinion is necessary regarding whether the left ankle disability preexisted this period of active duty and if so, whether it was aggravated during that time. Regarding the issue of entitlement to an initial rating higher than 10 percent for a left knee disability, in its September 2019 decision, the Board denied the claim. The Veteran timely appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and by an August 2020 Order, the Court granted a Joint Motion for Remand (JMR) that vacated and remanded the issue for further development. Specifically, the JMR found that the Board relied on an inadequate VA examination contrary to the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). The JMR concluded that the Board must obtain a new VA examination prior to deciding the claim on the merits. The matters are REMANDED for the following action: 1. Contact the relevant agencies and attempt to verify the Veteran’s duty status in April 1998. 2. After verifying the status of the Veteran’s service as requested in Directive 1 above, provide the Veteran with an appropriate VA examination to help determine the likely etiology of the claimed left ankle disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed left ankle disabilities. (b) Elicit from the Veteran and the record the history of signs and symptoms of the left ankle injury during qualifying periods of service and since service. (c) If the initial documented injury in April 1998 was during a qualified period of service, the examiner is asked to opined as to whether it is at least as likely as not (a 50 percent probability or higher) that any currently diagnosed left ankle injury had its onset during this period of service or is otherwise related to it. (d) If it is determined that the Veteran’s service in April 1998 is not a qualified period of service, the examiner is asked to determine whether a left ankle disability clearly and unmistakably preexisted prior to the Veteran’s active duty in January 2003. If so, the examiner is asked to opine as to whether such disability clearly and unmistakably was not aggravated during active duty from January 2003 to February 2006. A complete rationale should be provided for all opinions. 3. Provide the Veteran with a VA examination to help identify the current severity of the left knee disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the left knee disability throughout the pendency of the appeal. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. 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. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. 4. Then readjudicate the claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.