Citation Nr: 21074716 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-36 315A DATE: December 16, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected ligamentous strain of the right ankle is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1985 to August 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which increased the assigned rating for the Veteran's service-connected ligamentous strain of the right ankle to 10 percent from October 14, 2014. The Veteran filed a notice of disagreement (NOD) in May 2015 and a statement of the case (SOC) was issued in May 2017. The Veteran perfected a timely appeal in July 2017. In September 2021, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. 1. Entitlement to a disability rating in excess of 10 percent for service-connected ligamentous strain of the right ankle is remanded. With respect to the claim of entitlement to a higher disability rating for ligamentous strain of the right ankle, the Veteran was last afforded a VA examination in February 2015. He asserts that the February 2015 VA examiner failed to accurately assess his right ankle disability, which has been diagnosed as sinus tarsi syndrome by private treatment providers. See the Veteran's claim dated October 2014, the NOD dated May 2015, the VA Form 9 dated July 2017, and the Board hearing transcript dated September 2021. The Board further observes that the Veteran's private treatment records also note that he has a short Achilles tendon. See the private treatment records dated November 2012 and July 2014. The Board additionally notes that the February 2015 VA examiner indicated that the Veteran reported flare-ups; however, no specific functional impairment due to flare-ups was described by the examiner. The examiner reported that he was unable to say without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups. The United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing (and, if possible, with range of motion measurements of the opposite undamaged joint). Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that in addressing the nature of any flare-ups examiners must address the frequency, duration, characteristics, severity, and functional loss due to the flare-up. Because that the February 2015 examination report does not fully satisfy the requirements of Correia, Sharp, and 38 C.F.R. § 4.59, the Veteran should be afforded new VA examination before a decision can be rendered on his right ankle disability claim. The VA examiner should specifically address the entirety of the Veteran's right ankle symptomatology to include the diagnosed sinus tarsi syndrome and short Achilles tendon. A review of the Veteran's VA claims file shows that only VA treatment records through February 2017 have been associated with his VA claims file. The Veteran has indicated that he has received VA treatment since that date. See the Board hearing transcript dated September 2021. Moreover, the Veteran testified that he receives on-going treatment for his right ankle symptomatology at Kaiser Permanente. Id. As such, prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding VA and private records. The matters are REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, undertake appropriate efforts to procure any records of outstanding private treatment (including the treatment records Kaiser Permanente, referenced above) and VA treatment dating from February 2017 that the Veteran has received, which are potentially pertinent to the pending claim. All such available documents should be associated with the claims file. 2. The Veteran should also be afforded a VA examination in order to determine the extent of his service-connected right ankle disability. The claims file must be made available to the examiner for review in connection with the examination. The examination should be conducted in accordance with the current disability benefits questionnaire. The examiner should document all disabilities of the right ankle. For any diagnosed disability of the right ankle (other than the service-connected ligamentous strain), the examiner should render an opinion as to: a. Whether the identified disability is part and parcel of the service-connected ligamentous strain. b. Whether it is at least as likely as not (i.e., at least a 50 percent probability) that the diagnosed disability of the right ankle other than ligamentous strain had its(their) clinical onset in service, or is(are) otherwise related to a disease or injury incurred in service. c. Whether it is at least as likely as not that said disability is (1) proximately due to a service-connected disability to include ligamentous strain of the right ankle, or is (2) aggravated beyond its natural progression by a service-connected disability to include ligamentous strain of the right ankle. The examination must include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). (Continued on the next page) The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.