Citation Nr: 21061735 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 15-29 469 DATE: October 5, 2021 REMANDED Entitlement to a rating higher than 10 percent for a service-connected right ankle disability (residuals of a chronic sprain) from April 4, 2012 onwards is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to July 1978 and from February to April 1991. In November 2020, the Board denied this claim, and the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In an August 2021 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board's decision denying this claim and remanding it back to the Board for further development and readjudication pursuant to agreement in the JMPR. The parties agreed the Board had erred in relying on an October 2019 VA examination report that was inadequate for rating purposes. It is incumbent in this situation to obtain all necessary additional information. See 38 C.F.R. § 4.2. So, to comply with Court-granted JMPR, the Board, in turn, is remanding this claim back to the Agency of Original Jurisdiction (AOJ). Entitlement to a rating higher than 10 percent for the service-connected right ankle disability (residuals of a chronic sprain) from April 4, 2012 onwards is remanded. The October 2019 VA examination report is internally inconsistent. For instance, the VA examiner noted that pain increases with range of motion (ROM) but did not indicate the point at which pain began. The examiner then conversely noted a decrease in ROM after three repetitions but again did not note when pain began. In addition, the examiner indicated that flare-ups significantly limit functional ability due to "Pain, Weakness, Lack of endurance" during a flare-up, but the examiner was unable to describe it in terms of ROM. However, the examiner then indicated an additional limitation of motion (LOM) of ROM on dorsiflexion of 10 degrees and on plantar flexion of 30 degrees. Thus, more medical comment is needed assessing the functional impact of the Veteran's pain and other symptoms. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Accordingly, this claim is REMANDED for the following action: Have the Veteran reexamined by a qualified clinician for additional medical comment concerning the severity of the Veteran's right ankle disability - including especially in terms of whether he has additional functional impairment due to pain, such as during flare-ups or prolonged or repeated use of this ankle. To assist in making this determination, a copy of this remand and the JMPR and Court Order and all relevant medical and other records must be made available to the examiner for review. The examiner must consider the pertinent evidence, including the Veteran's lay assertions. The examiner must provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria, including as mentioned any evidence of right ankle functional limitation due to pain, such as during flare-ups or prolonged use. To this end, the examiner should consider and discuss the Veteran's lay testimony and assertions regarding any pertinent complaints and symptoms and their functional impact. It is essential the examiner provide rationale for the assessment and address the deficiencies in the prior VA examination in October 2019 that was cited in the August 2021 JMPR, which the Court granted in its August 2021 Order. Specifically, the examiner must address the additional loss of range of motion, if any, and specify the point in the ROM when pain begins. Furthermore, the examiner must address the Veteran's flare-ups and whether they account for additional function loss, whether in the way of additional LOM or other functional impairment. He is competent to report his symptoms and history, and his reports concerning this must be specifically acknowledged and considered in formulating the opinion regarding the severity of his right ankle disability. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. *In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed VA examiners' obligations to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." In the event an examination is not conducted during a flare-up, the critical question in assessing the adequacy of the examination is whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares. Id. This may be gleaned from information elicited from the Veteran. If the examiner is unable to provide the requested opinion without resorting to mere speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. In other words, merely saying he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.