Citation Nr: 21063123 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-46 601A DATE: October 13, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for osteochondritis dissecans, right talar with traumatic arthritis (hereinafter "right ankle disability"), for the period prior to December 20, 2019 and in excess of 20 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1991 to June 2001. The matter of entitlement to an initial higher disability rating for the Veteran's right ankle disability comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). That decision granted service connection for the disability and awarded an initial 10 percent disability rating, effective March 16, 2017. The following month, the RO issued another rating decision, finding that the assignment of the effective date for the grant of service connection constituted a clear and unmistakable error warranting correction; accordingly, the RO identified the appropriate effective date as March 17, 2017. The issue was previously before the Board in May 2019, at which time the Board remanded the matter to the agency of original jurisdiction (AOJ) to ascertain and document the current symptoms and severity of the Veteran's right ankle disability. Also at the time, the Board remanded a claim for service connection for bilateral hearing loss. In an April 2020 rating decision, service connection for bilateral hearing loss was granting. As that is a full grant of the benefit sought as to that appeal, it is no longer before the Board. Additionally, in the April 2020 rating decision, a higher 20 percent rating for the right ankle disability, effective December 20, 2019. However, this does not constitute a full grant of the claim and it remains in appellate status as higher ratings are available. AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to a disability rating in excess of 10 percent for service-connected right ankle disability, prior to December 20, 2019, and in excess of 20 percent thereafter. Although the Board regrets the additional delay this action may cause, the Board finds that another remand is necessary to ensure that there is a complete record upon which to decide the merits of the Veteran's appeal. As an initial matter, the Board observes that, pursuant to its May 2019 remand directives, the Veteran was afforded a VA examination for his right ankle disability. The findings of a December 2019 evaluation revealed, in pertinent part, ranges of motion of the right ankle joint limited to between 20 and 30 degrees dorsiflexion and between 20 and 30 degrees plantar flexion. See VA examination dated December 20, 2019. No ankylosis of the right ankle was reported. However, the Veteran was afforded an additional VA ankle examination in July 2021, after the most recent supplemental statement of the case was issued in April 2020. Although the medical report focused primarily on the symptoms and limitations exhibited by the Veteran's left ankle joint, relevant information concerning the severity of the Veteran's right ankle was also obtained. As such, remand is required for the AOJ to readjudicate the claim, with specific consideration of any additional evidence received since the April 2020 SSOC was issued. 38 C.F.R. §§ 19.31, 19.37. Notwithstanding the need for an SSOC, the Board also finds that the claim on appeal requires additional evidentiary development prior to appellate review. To that end, as noted above, the Veteran was afforded a VA examination of his ankle conditions in July 2021. Range of motion testing indicated that the endpoints of the Veteran's right ankle joint were 5 degrees for plantar flexion and 5 degrees for dorsiflexion. See VA examination July 24, 2021. Testing for both plantar flexion and dorsiflexion caused the Veteran pain. No ankylosis of the right ankle was observed. However, the medical report contains various inconsistencies regarding the severity of the disability. Specifically, although the nurse practitioner who evaluated the Veteran chronicled that the Veteran reported flare-ups of the condition, as well as functional limitation due to pain, she nevertheless documented that the Veteran did not experience such flare-ups or functional limitations by checking "No" to the corresponding questions. In light of the above, the Board finds that the July 2021 VA examination is inadequate for adjudicative purposes. Therefore, remand is warranted in order to provide the Veteran with an adequate VA examination that accurately documents the current symptoms and severity of his right ankle disability. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a VA physician (M.D.) of appropriate expertise to fully assess the current severity of the Veteran's right ankle disability. The claims file, to include a copy of this REMAND, must be made available to and reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. A complete history of symptoms must be elicited from the Veteran. Thereafter, the examiner is asked to address the following: (a.) Report the extent of the symptoms of the Veteran's right ankle osteochondritis dissecans, right talar, with traumatic arthritis, in accordance with applicable VA rating criteria. (b.) Conduct range of motion testing of the joint, specifically noting the motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (c.) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the respective joint. If pain on motion is observed, the examiner should indicate the point at which pain begins. (d.) State whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms and/or after repeated use over time. Based on the Veteran's lay statements and other evidence of record, the examiner must provide an opinion estimating any additional degrees of limitation of range of motion caused by functional loss during a flare-up. If the examiner is unable to do so, s/he must fully explain the basis of such an opinion. It should be noted that VA's Clinicians Guide specifically advises examiners to procure information necessary to render an opinion regarding flare-ups from Veteran. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, s/he should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. 2. Then, readjudicate the issue on appeal with consideration of all evidence associated with the claims file since the April 2020 SSOC. If the benefit sought on appeal remains denied, issue another SSOC and allow an appropriate time for response before returning the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Tolbert, 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.