Citation Nr: 21061777
Decision Date: 10/05/21	Archive Date: 10/05/21

DOCKET NO. 17-26 144
DATE: October 5, 2021

REMANDED

Entitlement to a disability rating in excess of 20 percent for the service-connected residuals of a right ankle fracture, including traumatic arthritis, status post open reduction, and internal fixation (right ankle disability) is remanded.

REASONS FOR REMAND

The Veteran had active service from January 1970 to January 1978.  This matter comes before the Board of Veterans' Appeals (Board) from a rating decision issued in April 2016.  This matter was previously before the Board in January 2019.

Entitlement to a disability rating in excess of 20 percent for the service-connected right ankle disability

While the record contains a contemporaneous VA examination regarding the Veteran's claim for an increased rating for his service-connected right ankle disability, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  Specifically, while the examiner stated that an opinion could not be provided without resort to speculation, her rationale was framed with respect to her individual medical knowledge and did not indicate that the speculation was due to lack of knowledge within the medical community.  An addendum opinion clarifying whether the inability to speculate is due to an individual inability on the part of this examiner or a limitation of the medical community at large is required.

Additionally, VA treatment records have been added to the record since the most recent Supplemental Statement of the Case (SSOC) in this matter.  On remand, this additional information should be assessed and considered prior to the promulgation of the next SSOC. Accordingly, this matter is REMANDED for the following:

1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's right ankle disability.  The examiner should clarify whether the inability to provide ranges of motion estimates during flare-ups or with repeated use over time for the Veteran's right ankle is an inability of the particular examineror whether, given the known facts and circumstances, it is a limitation of the medical community more broadly.

2. After the above development, and any other indicated development, has been completed, readjudicate the issue on appeal.  If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative an SSOC and provide them an opportunity to respond.  If necessary, return the case to the Board for further appellate review. 

 

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Steven H. Johnston, 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.