Citation Nr: 21068534 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-37 748 DATE: November 10, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent disabling for a right ankle injury prior to November 23, 2016, and in excess of 20 percent disabling thereafter is remanded. REASONS FOR REMAND The Veteran honorably served on active duty in the United States Army from November 1975 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board on multiple occasions, to include most recently in May 2021. Regrettably, an additional remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). 1. Entitlement to an evaluation in excess of 10 percent disabling for a right ankle injury prior to November 23, 2016, and in excess of 20 percent disabling thereafter is remanded. The Veteran contends that he is entitled to a higher evaluation for his service-connected right ankle injury. Review of the record indicates that this matter was recently remanded pursuant to a May 2021 decision. Therein, the Board noted that the Veteran was afforded a VA examination in August 2020. Regrettably, the VA examiner failed to comply with prior remand instructions requesting an inquiry into the Veteran's flare-ups reported during the December 2016 VA examination. As the examiner failed to provide a retroactive opinion as to any additional functional loss during flare ups as requested. Therefore, an additional remand was deemed necessary to ensure compliance with the Board's prior remand directive. Stegall v. West, 11 Vet. App. 268 (1998). In accordance therewith, the Veteran underwent an additional VA examination in July 2021, current diagnoses include displaced fracture of lateral malleolus of the right fibula, sequela. During the clinical interview, the Veteran reported landing on the balls of his feet and rolling his ankles while participating in paratrooper training. Post-service, he suffered a fracture to the right ankle in a fall while working in the tire center at Sam's club. X-ray films revealed a distal fibular spiral fracture of the same ankle. A progression of symptoms included an eventual development of Achilles tendonitis in both ankles. Current symptoms include swelling and severe pain, particularly with rising from bed or climbing stairs. Prescribed treatments have included casting and oral medications to treat pain. Flare-ups of pain pre-dated the right ankle fracture. The Veteran acknowledged use of arch supports to manage flat footedness. Two to three times per month, he reported use of Epson salt baths, elevation, and icing with ache bandages due to sharp, stabbing pain and pinching along the medial side of the right ankle. Worsening symptoms impact the heel of the foot. The Veteran denied symptom relief with participation in physical therapy. Functional loss was described as limited motion, pain and swelling with prolonged standing or ambulation. Instability was described as an "occasional tearing sensation" with shifting weight. Range of motion testing revealed plantar flexion limited to 15 degrees and dorsiflexion limited to 5 degrees. Pain was observed with plantar flexion and dorsiflexion. Abnormal range of motion did not contribute to functional loss. Passive range of motion was described as mirroring active motion findings. Passive range of motion was described as improved by 5 degrees, with pain on plantar flexion of the right ankle. Evidence of pain was noted with weight-bearing, non-weight bearing, active and passive motion. Pain does not contribute or cause functional loss. There was no objective evidence of crepitus, localized tenderness or pain to palpation. No additional functional loss or loss of range of motion was observed with repetitive use testing. Pain and limping contribute to functional loss over time with repetitive use. Based upon the Veteran's lay assertions, a loss of 5 degrees of plantar flexion and dorsiflexion was suggested with repetitive use. Additional factors contributing to the Veteran's disability include interference with standing, disturbance of locomotion, less movement than normal, and instability of station. Based upon the Veteran's lay assertions, other factors were described as laxity of right ankle with giving out that predisposed him to falls. Pain and swelling were associated with subsequent sprains and limited range of motion. There was no evidence of muscle atrophy or ankylosis. Joint stability testing revealed normal findings. Additional comments were listed as sharp pain with a "tearing sensation" at the base of the heel that radiates up back of leg. The Veteran reported worsening symptoms when rising from bed or climbing stairs. According to the Veteran, flare-ups were described as pinching pain, swelling, throbbing and burning requiring him to rest. This experience causes an estimated loss of function of 5 degrees of dorsiflexion and plantar. In support of the stated conclusion, the examiner noted the Veteran's previous report of a fall during an airborne training operation in which he injured the right ankle. Following the incident, a cast was placed on the right ankle for several weeks. Years later, he suffered a right ankle fracture in work-related injury. Post-service treatment records show that the Veteran was diagnosed with a chronic mild right ankle strain. According to the Veteran, he was prone to reinjuring his right ankle, which includes swelling, pain and reduced motion. The Veteran's subjective reports of re-injury to the right ankle is deemed reasonable given that weakness in the ligaments and tissue allows joint laxity. In an addendum opinion, dated August 2021, the examiner was requested to offer an opinion regarding whether the Veteran's report of an additional loss of 5 degrees of motion during flare-ups with limping and pain were associated with his service-connected right ankle sprain or work-related fracture. In responding to the above referenced request, the examiner considered prior evaluations that suggested an additional loss of 5 degrees of dorsiflexion and plantar flexion during flare ups in December 2016 and dorsiflexion and plantar flexion limited to 0 degrees due to limping and pain during flare-ups in June 2021. In analyzing the above, the examiner suggested that the findings were of completely subjective value. According to the Veteran, he is required to lay down and rest during flare-ups. Use of assistive devices to manage flare-ups was not required. Therefore, the examiner concluded that the evidence did not support a finding of range of motion limited to 0 degrees during flare-ups, to include following his work-related injury. On reconsideration, the examiner indicated that there is in insufficient evidence to offer an opinion regarding loss of range of motion during flare-ups without resorting to mere speculation. On review of the above, the Board finds the August 2021 VA opinion inadequate as its findings are internally inconsistent. Per the previous remand directives, the examiner was requested to offer an opinion regarding the current severity of the Veteran's service-connected right ankle injury, to include retroactive opinions in light of Correia and Sharp. In response, the August 2021 VA examiner rendered conflicting findings regarding passive range of motion, whether pain contributes to functional loss, and a subsequent addendum was inconsistent with the examiner's previous conclusions regarding additional loss of range of motion during flare-ups. Accordingly, in light of the foregoing reasons, a new VA examination is required to resolve the numerous conflicting conclusions found in the August 2021 VA opinion and subsequent addendum. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected right ankle injury. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner must also discuss the functional effects of the Veteran's service-connected right ankle injury, and any related residual conditions. An opinion should be offered regarding active and passive range of motion limitations, and any additional loss of range of motion during flare-ups. As a part of the examination and/or opinion, the examiner must consider all medical evidence to include the Veteran's lay statements. Any opinion offered must be accompanied by a complete rationale, to include consideration of all medical evidence and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. 2. Thereafter, re-adjudicate the Appellant's claim. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.