Citation Nr: 21069000 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 14-05 096 DATE: November 17, 2021 REMANDED A disability rating higher than 10 percent for status-post right ankle arthroscopy ("right ankle disability") is remanded. REASONS FOR REMAND The Veteran testified before the undersigned Veterans Law Judge in a November 2017 Travel Board hearing. A transcript of that hearing has been associated with the file. Entitlement to service connection for left ankle disability and service connection for left knee disability were originally on appeal as well. However, in an August 2021 rating decision, the RO granted service connection for these claims, representing a full grant of benefits. Accordingly, these issues are no longer before the Board. The only remaining issue on appeal is listed on the title page. The Board recognizes that the Veteran is separately rated for scars of the right ankle. However, he has not contended, and the record does not illustrate symptoms consistent with compensable ratings. As such, the Board has not taken this claim as part and parcel of the increased rating claim on appeal. In order to comply with the terms of the February 2021 Joint Motion for Partial Remand (JMPR) which the United States Court of Appeals for Veterans Claims (Court) granted in February 2021, the Board remanded the matter in July 2021. Unfortunately, a review of the August 2021 VA examination report illustrates there has not been substantial compliance with the directives, and therefore an additional remand is required. Stegall v. West, 11 Vet. App. In the JMPR the parties agreed that the Board erred in denying the increased rating claim as it relied on an examination that was inadequate. The April 2019 VA examination was inadequate as the examiner did not provide results of testing of motion in weight-bearing positions as required under Correia v. McDonald, and as was required by the March 2018 remand instructions. The parties also agreed that the Board erred when it did not explain whether there was instability of the right ankle. The August 2021 VA examination is also inadequate for those same reasons. Despite the Veteran reporting instability of the ankle during the examination, the section in the report regarding whether instability is suspected was left blank. Additionally, the examiner failed to provide results of testing of motion in weight-bearing and non-weight bearing positions. As such a remand is required in order to obtain an adequate examination to determine the current severity of the Veteran's right ankle disability. Also, the diagnosis of the right ankle disability was not in question, until reading the August 2021 VA examination report. The examination report notes a 1995 diagnosis of status-post right ankle arthroscopy, a 2012 diagnosis of degenerative arthritis, and a 2012 diagnosis of tendinopathy. At the end of the report the examiner stated that the VA established diagnosis of status-post right ankle arthroscopy is changed, and it is a progression of the previous diagnosis. "Arthroscopy can damage local cartilage/tissues and lead to degenerative changes." As the matter is being remanded the examiner will be requested to clarify all current diagnoses of the right ankle. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his right ankle disability. The Veteran's electronic claims file, to include this remand should be made available to and reviewed by the examiner. The examiner is asked to perform an examination to assess the current level of severity of the Veteran's right ankle and to describe all current diagnoses of the right ankle (as of December 2009). The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. To the extent possible, the examiner should identify any symptoms and functional impairment due to the Veteran's right ankle disability alone and discuss the effect of his right ankle disability on any occupational functioning and activities of daily living. 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, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all 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, or an opinion regarding flare-ups, symptoms, or functional impairment 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 whether it is due to the examiner not having the knowledge or training. The examiner is asked to assess whether there is or has been instability of the right ankle at any time during the appeal period (as of December 2009). The examiner should provide a complete rationale for any opinions provided. 2. The AOJ should ensure that the examiner provides all information required for rating purposes and that the opinions conform with the remand directives. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.