Citation Nr: 21068165 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-58 716A DATE: November 9, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for residuals of a left ankle strain with possible fracture is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1969 to February 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 decision by the Agency of Original Jurisdiction (AOJ), which in this case was the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi. Entitlement to a disability rating in excess of 20 percent for residuals of a left ankle strain with possible fracture is remanded. At present, the Veteran's service-connected left ankle disability is in receipt of a 20 percent rating under Diagnostic Code 5262. His last VA examination for the ankle was conducted in November 2017, but in April 2019, he indicated that several disabilities, including his ankle, had increased in severity. Further, the findings from the November 2017 VA examination suggest that the Veteran's left ankle disability picture may require extraschedular consideration. 38 C.F.R. § 3.321(b)(1). Although the Board may not assign an extraschedular rating in the first instance, it may refer a case for extraschedular evaluation when the issue either is raised by the claimant or, as in this case, is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Board has considered whether this claim should be referred for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b), which is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). After considering the factors addressed in Thun v. Peake, 22 Vet App 111 (2008) (aff'd sub. nom. Thun v. Shinseki, 573 F.3d 1366 (Fed Cir. 2009)), the Board finds that the Veteran's service-connected left ankle disability manifests with symptoms that are not contemplated by the rating schedule, specifically instability and use of multiple assistive devices for locomotion, and presents with such significant disability as to cause potential interference with employment. Accordingly, the Board finds that after a new VA examination is completed, the left ankle disability must be referred to Director, Compensation and Pension Service, for consideration of whether an extraschedular rating is warranted. The matter is REMANDED for the following actions: 1. Schedule the Veteran for an in-person examination by an appropriate clinician to determine the current severity of his service-connected left ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) 2. After the new VA examination is completed, refer the Veteran's claim for increased ratings for residuals of a left ankle strain with possible fracture to the Director of Compensation and Pension Service pursuant to the provisions of 38 C.F.R. § 3.321(b) for consideration of whether an extraschedular rating is warranted. 3. Thereafter, adjudicate the issues of entitlement to an increased rating for residuals of a left ankle disability, to include on an extraschedular basis. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable period of time within which to respond. J. M. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.