Citation Nr: 21002576 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 18-52 756 DATE: January 14, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for left ankle chronic synovitis, status-post fracture with degenerative joint disease, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1981 to December 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in July 2019. At that time, the Board denied a rating in excess of 10 percent for the left ankle disability. The Board also granted a 10 percent rating for a left ankle scar. The Veteran timely appealed the denial of a rating in excess of 10 percent for the left ankle disability, but did not appeal the rating assigned for the ankle scar. In June 2020, the Veteran together with the Secretary of Veterans Affairs filed a Joint Motion for Partial Remand (JMPR) in the United States Court of Appeals for Veterans Claims (CAVC), citing deficiencies in the VA examinations of record. CAVC granted the joint motion in June 2020, pursuant to 38 U.S.C. § 7252 (a), for action consistent with the terms of the joint motion. The case has now been returned to the Board for further adjudication. Specifically, the JMPR found deficiencies in VA examinations of record dated in August 2013, August 2015, and June 2018. The parties agreed that the VA examinations did not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), Correia v. McDonald, 28 Vet. App. 158 (2016), or Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As a result, the appeal is remanded to the AOJ to afford the Veteran another VA examination to adequately assess the severity of his left ankle disability. The matters are REMANDED for the following actions: 1. Associate with the claims folder updated VA treatment records. 2. Then, schedule the Veteran for a new VA examination in order to assess the current severity of his left ankle disability. (a.) In order to comply with the decision in Sharp, the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. (b.) In order to comply with the decision in Correia, the VA examination must include range of motion testing in active motion; passive motion; weight-bearing; and nonweight-bearing. (c.) In compliance with Mitchell, the examiner should specifically indicate whether, and at what point during, range of motion testing pain began. (d.) 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. The VA examiner should provide a complete rationale for any opinions provided. 3. Then, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.