Citation Nr: 21068197 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-06 067 DATE: November 9, 2021 REMANDED Entitlement to an increased initial rating for degenerative arthritis/disc disease of the cervical spine with intervertebral disc syndrome (IVDS), rated as 10 percent disabling from April 30, 2013, and 20 percent disabling from July 21, 2020, is remanded. Entitlement to an increased initial rating greater than 10 percent for a left ankle condition is remanded. Entitlement to an increased initial rating greater than 10 percent for a right ankle condition is remanded. Entitlement to an increased initial rating greater than 10 percent for a left wrist disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1988 to December 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. The Veteran testified before the undersigned Veterans Law Judge during a May 2015 hearing. A transcript of the hearing is associated with the Veteran's claim file. This matter was previously before the Board in October 2015, April 2020, and most recently in April 2021. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to an increased initial rating for degenerative arthritis/disc disease of the cervical spine with IVDS, rated as 10 percent disabling from April 30, 2013, and 20 percent disabling from July 21, 2020 The Veteran contends that he is entitled to higher ratings for his service-connected cervical spine condition. During the period on appeal the Veteran's cervical spine disability was increased to 20 percent, effective July 21, 2020, the date of the VA examination that showed that an increase was warranted. However, as the Veteran has not been granted the maximum benefit allowed for his cervical spine disability for the entire appeal period, the claim is still active, as characterized on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The April 2020 Board decision remanded the issue as the most recent VA examination in October 2015 did not contain ranges of motion for passive or active ranges of motion or weight and non-weightbearing measurements. Pursuant to the April 2020 Board remand instructions, the Veteran was afforded a VA examination in July 2020. The VA examiner indicated that there was evidence of pain on passive range of motion testing but could not be performed or is not medically appropriate; however, there was no explanation as to why passive range of motion could not be performed or why it was not medically appropriate. Additionally, the examiner stated that there was evidence of pain when the joint is used in non-weightbearing but did not provide the measurements in weightbearing or non-weightbearing. The VA examiner did not comply with the requirements as noted in Correia. Furthermore, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the Board finds that there has not been substantial compliance with the Board's previous remand directives and remand is necessary. 2. Entitlement to an increased initial rating greater than 10 percent for a left ankle condition 3. Entitlement to an increased initial rating greater than 10 percent for a right ankle condition The Veteran asserts that his left and right ankle conditions warrant a higher evaluation than as currently assigned. At the July 2020 VA examination for the ankle disabilities, the examiner noted that there was no evidence of pain on passive range of motion but did note that there was evidence of pain in non-weightbearing. Nevertheless, as instructed in the April 2020 Board remand instructions, the VA examiner did not provide the ranges of motion for passive or active ranges of motion or weight and non-weightbearing measurements. As the April 2020 remand was not complied with, and in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. 4. Entitlement to an increased initial rating greater than 10 percent for a left wrist disability The Veteran maintains that his left wrist disability warrants an evaluation greater than the 10 percent evaluation currently assigned. Pursuant to the April 2020 Board remand, the Veteran was examined for his left wrist disability in July 2020. The April 2020 Board remand instructions specified that the ranges of motion in passive, active, in weightbearing, and non-weightbearing were to be measured at the VA examination. The July 2020 VA examiner did not include the requested ranges of motion as instructed in the April 2020 Board remand. Additionally, the Board notes that the Veteran is assigned the highest rating for limitation of motion of the wrist, and that a higher rating requires ankylosis. At the July 2020 VA examination, the Veteran stated that he has gradual worsening of pain, stiffness, and decreased range of motion. He also stated that he cannot push heavy objects or doors and cannot use hand tools for more than fifteen minutes without a break. The VA examiner found that the Veteran did not have ankylosis of the left wrist. However, the Veteran had stated that he has stiffness, and he cannot push heavy objects or doors, and cannot use hand tools for more than fifteen minutes without a break. On remand, the VA examiner should address whether the Veteran's reports regarding his left wrist is the functional equivalent of ankylosis. In light of the above, remand is warranted to ensure compliance with the Board's remand and to obtain an examination and medical opinion as to whether the Veteran's left wrist disability manifested as the functional equivalent of ankylosis. The matters are REMANDED for the following action: 1. Obtain VA treatment records from July 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, schedule the Veteran for a VA examination to assess the severity of the service-connected cervical spine disability, left ankle disability, right ankle disability, and left wrist disability. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Specifically, the Veteran's cervical spine, left ankle, right ankle, and left wrist should be tested for pain in both weightbearing and non-weightbearing positions, and on both active and passive motion. If this cannot be performed, the examiner should explain why. The examiner should record the range of motion of the joints observed on clinical evaluation in terms of degrees. The examination must include testing results of both active and passive motion, and in weightbearing and non-weightbearing. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If the Veteran reports flare-ups, the examiner should ask him to report or demonstrate his range of motion during the flare-ups. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use and/or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use and/or during flare-ups. The VA examiner should assess the additional functional impairment on repeated use and/or during flare-ups in terms of the degree of additional range of motion loss. If the VA examiner is unable to report the degree of additional range of motion loss during repeated use and/or a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during repeated use and/or flare-ups or explain why it is not feasible to render such an opinion. If the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion on repeated use and/or flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Regarding the Veteran's left wrist disability, the examiner must also provide an opinion as to whether the Veteran's left wrist symptoms are equivalent of ankylosis in his left wrist. If so, the examiner is asked to estimate the type (favorable or unfavorable) and the degree of the equivalent of ankylosis. In providing this opinion, the examiner should consider whether the Veteran's range of motion is so diminished as a result of pain so that it is the functional equivalent of ankylosis and whether the Veteran's statements regarding his ability to perform the functions associated with the left wrist is the functional equivalent of ankylosis. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. All opinions expressed should be accompanied by supporting rationale. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.