Citation Nr: 21064852 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 12-14 873 DATE: October 21, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to July 14, 2016, and a rating in excess of 20 percent as of July 14, 2016, for a right ankle disability is remanded. REASONS FOR REMAND The Veteran had active service from August 1979 to June 1996. These claims come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in November 2013. A transcript of that hearing is of record. In June 2014 and December 2014, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. An August 2016 rating decision increased the rating for a right ankle disability from 10 percent to 20 percent, effective July 14, 2016. In November 2017, the Board denied entitlement to a rating in excess of 10 percent, prior to July 14, 2016, and in excess of 20 percent, as of July 14, 2016, for a right ankle disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In July 2018, the United States Court of Appeals for Veterans Claims granted the Parties' Joint Motion for Partial Remand and vacated those portions of the November 2017 Board decision which denied entitlement to a rating in excess of 10 percent for a right ankle disability prior to July 14, 2016, and in excess of 20 percent as of July 14, 2016, and remanded those issues to the Board for additional action consistent with the Joint Motion. In January 2019, October 2020, and May 2021, the Board again remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to a rating in excess of 10 percent prior to July 14, 2016, and a rating in excess of 20 percent as of July 14, 2016, for a right ankle disability is remanded. In the May 2021 Remand, the Board requested that the Veteran be scheduled "for a VA examination by an orthopedist or a podiatrist determine the current severity of service-connected right ankle degenerative joint disease, status post fracture." The Remand further requested that examiner "confirm that the examiner is an orthopedist or a podiatrist." The Veteran was scheduled for the requested examination. The resulting July 2021 examination report indicates that the ankle evaluation was conducted by an internal medicine physician rather than a requested specialist. Compliance with Board remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the requested actions were not completed and do not substantially comply with the May 2021 Board remand. The Veteran's record should be referred to an orthopedist or a podiatrist to determine the current severity of service-connected right ankle degenerative joint disease. The Board notes that, during the course of this appeal, the Veteran has previously successfully contested the adequacy of a VA examination due to the qualifications of the examiner. The Parties' July 2018 Joint Motion for Partial Remand determined that the Board's November 2017 decision was predicated on a VA ankle examination that did not substantially comply with the Board's previous remand instructions as it was unclear if a podiatrist or an orthopedist performed the examination, as ordered. That finding resulted in the Court vacating the Board's November 2017 decision. The Board same issue which resulted in the July 2018 Joint Motion for Partial Remand has again presented itself. Therefore, the Board must remand the appeal. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. After obtaining appropriate authorization, obtain any VA and private treatment records identified by the Veteran that are not already of record. 2. Then, schedule the Veteran for a VA examination by an orthopedist or a podiatrist to determine the current severity of service-connected right ankle degenerative joint disease, status post fracture. The examiner must review the claims file and should note that review in the report. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should provide the following information: (a.) Confirm that the examiner is an orthopedist or a podiatrist. (b.) Test all ranges of motion of the right ankle and note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or if there is weakened movement, excess motion, fatigability, painful motion, or incoordination attributable to the service-connected disability, expressed in terms of the degree of additional range of motion loss. The examiner should identify the point in the range of motion when pain begins. (c.) Test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both ankles. Specifically clarify and state whether ankylosis of the right ankle is shown, particularly if any range of motion is recorded as from 0 degrees to 0 degrees. (d.) Opine whether any pain associated with the right ankle disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner must attempt to ascertain adequate information concerning the functional effects of the ankle disability during flare-ups, such as information regarding frequency, duration, characteristics, severity, or functional loss. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.