Citation Nr: 21071124
Decision Date: 11/29/21	Archive Date: 11/29/21

DOCKET NO. 17-33 884
DATE: November 29, 2021

REMANDED

Entitlement to a rating in excess of 20 percent for right ankle sprain residuals with degenerative arthritis and tendinitis is remanded.

REASONS FOR REMAND

The Veteran had active service from July 1977 to July 1980; from February 1982 to July 1992; and from April 1995 to February 1996.  

Entitlement to a rating in excess of 20 percent for right ankle sprain residuals with degenerative arthritis and tendinitis.

In its September 2021 Remand instructions, the Board of Veterans' Appeals (Board) requested that the Veteran be afforded further Department of Veterans Affairs (VA) ankle evaluation.  The examiner was directed to "discuss the nature and severity of the Veteran's right ankle disability during a flare up and opine as "to whether the evidence of record, including the Veteran's statements, demonstrates that the Veteran's flare ups of his right ankle disability are functionally equivalent to ankylosis."  

The report of an October 2021 VA ankle examination does not address the right ankle disability during a flare up.  The examining VA physician assistant commented that "I would not say that his right ankle is the equivalent to ankylosis of the right ankle joint" and "he can move it and is not rigid."  

The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary.  Stegall v. West, 11 Vet. App. 268 (1998).  

The matters are REMANDED for the following action:

Schedule the Veteran for a VA ankle examination conducted by a medical doctor to assist in determining the current severity of the service connected right ankle sprain residuals with degenerative arthritis and tendinitis.  The examiner must review the record and should note that review in the report.  A rationale for all opinions should be provided.  The examiner should:

(a)  Provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion of the right ankle.

(b)  State whether there is any additional loss of right ankle function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up.

(c)  State whether or not ankylosis of the right ankle is shown.  The examiner should specifically address whether the examination findings and the evidence of record, including the Veteran's statements, "demonstrate that the flare ups of the service connected right ankle disability are functionally equivalent to ankylosis."  

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J. T. HUTCHESON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Macek, M. A.

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.