Citation Nr: 21073047 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-36 954 DATE: December 7, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for service-connected right ankle fracture with chronic sprain is remanded. Entitlement to service connection for chronic fatigue syndrome. Entitlement to service connection for left ankle disability. Entitlement to service connection for left knee disability. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1964 to September 1988. The Board notes the Veteran has submitted additional evidence after the most recent June 2018 statement of the case (SOC). As to the evidence submitted by the Veteran, a waiver of original consideration by the AOJ is not necessary. No VA generated evidence relevant to this claim was added to the claims file after the June 2018 SOC. Entitlement to an increased rating in excess of 10 percent for service-connected right ankle fracture with chronic sprain is remanded. During the Veteran's August 2021 Board hearing, the Veteran testified that his right ankle symptoms have worsened since his last VA examination. His most recent examination was in 2017. Accordingly, a contemporaneous examination to ascertain the current severity of his right ankle is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). At the Veteran's hearing, his representative stated that he submitted 2019 private medical records to the claims folder, which are relevant to his right ankle increased rating claim. However, those records have not been associated with the claims folder. Therefore, his private medical records should be obtained. Lastly, the rating changes in the regulations for musculoskeletal system may affect the current appeal as there are new rating criteria for the ankle. Therefore, a remand for consideration of the merits of this matter by the AOJ, in the first instance, is warranted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Entitlement to service connection for chronic fatigue syndrome. Entitlement to service connection for left ankle disability. Entitlement to service connection for left knee disability. An October 2017 AOJ rating decision, in pertinent part, denied service connection claims for chronic fatigue syndrome, left knee disability and left ankle disability. In November 2017, the Veteran submitted VA Form 21-0958 (Notice of Disagreement) with these denials (notably referencing the right knee on specific issues of disagreement but adding argument clearly indicating an intent to dispute the denial of service connection for left knee disability). The AOJ did not issue a Statement of the Case (SOC) and the Veterans Appeals Control and Locator System (VACOLS) does not reflect that an appeal was initiated. These issues are remanded for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his right ankle, to include Ledger Foot and Ankle Clinic at Seaton Medical Center. Make two requests for the authorized records from each identified treatment providers, unless it is clear after the first request that a second request would be futile. In the alternative, if the Veteran and/or his representative has the relevant records in their possession, ask the Veteran to resubmit the records and associate them with the claims folder. 2. Furnish the Veteran an SOC on the issue of entitlement to service connection for chronic fatigue syndrome, left knee disability and left ankle disability. 3. Once the above development has been completed, schedule the Veteran for a VA examination by an appropriate examiner to assess the current severity of his service-connected right ankle disability. Access to the electronic claims file must be made available to the examiner for review. In accordance with the latest worksheets for rating the ankles, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. In evaluating ankylosis, the VA examiner must state whether, when considering the extent of functional impairment under the Sharp/Correia factors above, there is: (1) the functional equivalent of plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, or (2) the functional equivalent of plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adductions, inversion or eversion deformity, or (3) no ankylosis. The VA examiner should provide a complete rationale for any opinions provided. 2. Once a VA examination has been conducted, readjudicate the increased rating claim to consider both the old and new criteria for rating ankle disabilities. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.