Citation Nr: 21068359 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-11 787 DATE: November 10, 2021 REMANDED A higher rating in excess of 10 percent for a service-connected right ankle disability. REASONS FOR REMAND The Veteran served on active duty from September 7, 1972, to September 25, 1972. The case is on appeal from a March 2018 rating decision. In November 2021, the Veteran testified at a Board hearing. A higher rating in excess of 10 percent for a right ankle disability. The Veteran contends that the currently assigned 10 percent rating evaluation for his right ankle disability does not compensate for the severity of his symptoms. During a November 2021 Board hearing, the Veteran testified that his right ankle disability manifests by more severe pain, difficulty walking, and swelling. He further noted that he is currently under pain medication and requires the assistance of a brace to ambulate. The Veteran was last afforded a VA examination in connection with this claim in March 2018. While the examination complied with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) (VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, if applicable), it did not comply with the additional requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups. Given that the Veteran reports that his disability has worsened, because his last examination was afforded a little over three and a half years ago, and in light of that additional reasons set forth above, the Board finds that a remand is warranted for a contemporaneous VA examination in compliance with Sharp, and to ascertain the severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). In light of the remand, updated VA treatment record shoulder be obtained. Lastly, the Board points out that VA revised the rating criteria for evaluating ankle disorders, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). Generally, a change in rating criteria during the pendency of the claim applies prospectively, if more favorable. The Veteran's right ankle disorder is rated under 38 C.F.R. § 4.71a, DC 5271. The changes to DC 5271 define "moderate" and "marked" in terms of range of motion. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records dated since February 2021. 2. Schedule the Veteran for a contemporaneous VA examination by a qualified medical professional to assess the severity of the Veteran's service-connected right ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms for evaluating the Veteran's disability under the applicable rating criteria. This should include an assessment in compliance with Sharp. If the functional loss during a flare-up cannot be estimated in terms of range of motion in degrees, it should be explained why this is so, e.g., 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). Consideration should be given to the Veteran's testimony during his November 2021 Board hearing regarding the worsening of symptoms (i.e., severe pain, difficulty walking, and swelling). A complete rationale should be provided for any opinions reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.