Citation Nr: 21002408 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-28 748 DATE: January 13, 2021 REMANDED Entitlement to an increased disability rating, in excess of 20 percent, for right leg, status post distal shaft of the fibula (right leg disability), to include entitlement to a separate, additional rating for a right knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1960 to January 1963. In March 1960, he slipped on ice and sustained a simple fracture of the right distal fibula, a chip fracture of the right tibia, and a right ankle sprain. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In that decision, the RO granted service connection for residuals of that injury, and assigned an initial non-compensable disability rating. The Veteran timely appealed that determination, and during the pendency of the appeal, the RO increased the rating disability for the right ankle disability to 10 percent disabling, effective October 19, 2015. In a September 2018 decision, the Board denied entitlement to an initial rating, in excess of 10 percent, for the service-connected right leg, status post distal shaft of the fibula. Thereafter, the Veteran appealed this decision with the United States Court of Appeals for Veterans Claims (CAVC). In an April 2019 joint motion for remand (JMR), the parties stipulated that a vacatur and remand of the September 2018 Board decision was warranted because the Board, by denying a rating in excess of 10 percent, under DC 5262, and failing to provide an adequate statement of reasons or bases, failed to fully explain why the Veteran’s disability did not more nearly approximate a “moderate” level of impairment, since the term “mild” and “moderate” are not defined in DC 5262, and consequently, frustrates judicial review. In a May 2019 Order, CAVC vacated and remanded the September 2018 Board decision. Thereafter, the appeal returned to the Board, and in a January 2020 decision, the Board granted a rating increase of 20 percent for the service-connected right leg disability. Subsequently, the Veteran appealed this decision with CAVC. In a July 2020 joint motion for partial remand (JMPR), the parties stipulated that a vacatur and remand of the portion of the January 2020 decision that denied a rating in excess of 20 percent, for the right leg disability, are warranted because the Board, 1) by denying a rating in excess of 20 percent, did not provide an adequate statement of reasons and bases for finding that the Veteran’s right leg disability, currently rated under 38 C.F.R. § 4.71a, DC 5271-5262, precludes a separate disability rating for his right knee disability, under 38 C.F.R. § 4.71a, DC 5262; and (2) did not adequately discuss whether a July 2018 VA examination report supported a higher rating evaluation for the right ankle disability, under §§ 4.40 and 4.45. In an August 2020 Order, CAVC vacated and remanded the part of the January 2020 Board decision that denied an increased rating, in excess of 20 percent, for the right leg disability. In this regard, The Board regrets further delay, as additional developments are necessary before a decision may be rendered on this issue on appeal. Once these additional developments have been undertaken, the Board shall address the issue of whether a separate, additional rating is warranted for the right knee disability. The Veteran asserts entitlement to a rating, in excess of 20 percent, for his right leg disability. He was afforded a VA examination for ankle conditions in July 2018. At this VA examination, the Veteran reported having flare-ups of the right ankle, which he described as swelling up with pain and discomfort. On examination of the right ankle, the VA examiner noted that the examination was not being conducted during a flare-up; and that the examination was medically consistent with the Veteran’s statement describing functional loss during flare ups. However, pertinent case law indicates that an examination that acknowledges that the veteran was not suffering from a flare-up of any his conditions must still ascertain adequate information, such as frequency, duration, characteristics, severity, or functional loss, regarding his flares by alternative means. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017) see also DeLuca v. Brown, 8 Vet. App. 202, 206 – 07 (1995) (holding that a VA medical examination that fails to take into account the factors listed in 38 C.F.R. §§ 4.40 and 4.45, including those experienced during flare ups, is inadequate for evaluation purposes). Therefore, a remand is required for A new, adequate VA examination for the right ankle disability, which contemplate all pertinent factors, including and not limited to, the criteria established by Sharp. The matters are REMANDED for the following action: Schedule the Veteran for a new VA examination to determine the severity of his right ankle disability. The appropriate disability benefits questionnaire (DBQ) form should be utilized for each disability. The VA examiner must undertake the following: a. Conduct range of motion testing, specifically noting the motion in degrees, in both active motion and passive motion, and in both weight-bearing and non-weightbearing. See Correia v. McDonald, 28 Vet. App. 158, 169 – 170 (2016). b. If the Veteran has reported any periods of flare ups, but range of motion testing could not be conducted during a flare up, state the severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment. See Sharp, 29 Vet. App. at 26, 32. c. In conducting this examination, the VA examiner must indicate whether pain could significantly limit functional ability, during flare-ups, or with repeated use over a period of time; and specifically, where feasible, describe any limitations, in terms of the degree of additional range-of-motion loss due to pain on use or flare-ups. d. If the VA examiner concludes that functional loss cannot be determined without resorting to speculation, the VA examiner must indicate this, with a clear detailed rationale. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.