Citation Nr: 21005411 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-08 799 DATE: February 1, 2021 REMANDED Entitlement to an increased disability rating in excess of 20 percent for right ankle osteochondral defect and instability is remanded. Entitlement to an extraschedular rating for the Veteran’s right ankle disability is remanded. Entitlement to an initial increased disability rating in excess of 10 percent for right knee strain status post right knee surgery is remanded. Entitlement to an initial disability rating in excess of 10 percent for limitation of extension of the right knee is remanded. Entitlement to an initial disability rating in excess of 10 percent for instability of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1984 to August 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision. In a February 2017 decision, the claims for entitlement to an increased rating for a right ankle and right knee disability were remanded by the Board for further development. In a September 2019 decision, the Board denied the claims for entitlement to an increased disability rating for right ankle osteochondral defect and right knee strain status post right knee surgery. In this same decision, the Board remanded the claim for entitlement to an extraschedular rating for the right ankle disability and granted separate ratings for right knee extension and right knee instability. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 order, the Court granted a Joint Motion for Partial Remand (Joint Motion) and remanded the matter to the Board for action consistent with the Joint Motion. 1. Entitlement to an increased disability rating in excess of 20 percent for right ankle osteochondral defect and instability is remanded. The Veteran contends that the symptoms of his right ankle disability warrant an increased disability rating. The Joint Motion found that a remand was necessary due to the Board’s failure to provide the Veteran with an examination of the right ankle that complies with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, the Board erred by failing to provide such an examination in the first instance. Notably, the claim was remanded in February 2017 for an adequate VA examination. The subsequent July 2017 VA examination report reflects that the examiner stated that pain in the right ankle significantly limited the Veteran’s functional ability with repeated use over time. However, the examiner stated that he could not opine as to additional limitation in terms of range of motion because the Veteran was not being examined after repetitive use. Additionally, the examiner reported that he was unable to opine as to additional functional loss during a flare-up because the Veteran was not being examined during a flare-up at that time. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Additionally, in a January 2021 argument submitted by the Veteran’s representative, he argued that the evidence reflects that the Veteran had arthrodesis of the right ankle. He cited medical research that reported that arthrodesis is defined as the surgical fixation of a joint by a procedure designed to accomplish fusion of the joint surfaces promoting the proliferation of bone cells; also called artificial ankylosis. The Veteran asked that his reported ankylosis be considered. For the reasons above, an adequate VA examination is not of record. An additional VA examination is therefore required to provide findings compliant with Sharp, 29 Vet. App. 26. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to extraschedular rating for the Veteran’s right ankle disability is remanded. The Veteran contends that the symptoms of his right ankle warrant an extraschedular disability rating. Following the September 2019 Board remand, the Executive Director of Compensation Service issued a September 2020 advisory opinion and found that an extraschedular evaluation for the service-connected right ankle osteochondral defect and instability does not appear to be warranted at this time. She found that the preponderance of the evidence of record does not indicate that the symptoms of this condition are inadequately compensated by the rating schedule. The evidence does not indicate frequent hospitalizations due to this condition, nor that it has resulted in sustained and significant time away from work. She noted that some difficulties have been noted due to this condition in context of working such as limitation to prolonged standing or walking, etc. She concluded that the evidence does not appear to show that the Veteran has had to stop working or take significant time off work due to this condition (aside from those periods already compensated for convalescent purposes). As noted above, a full disability picture for the Veteran’s right ankle is not yet of record. Thus, the Veteran’s claim is inextricably intertwined with the issue of entitlement to an increased disability rating for right ankle osteochondral defect and instability, which is being remanded for further development. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, a final decision on the issue of entitlement to an extraschedular rating for the right ankle disability cannot be rendered at this time. 3. Entitlement to an initial increased rating in excess of 10 percent for right knee strain status post right knee surgery; 4. Entitlement to an initial disability rating in excess of 10 percent for limitation of extension of the right knee; and 5. Entitlement to an initial disability rating in excess of 10 percent for instability of the right knee are remanded. The Veteran contends that the symptoms of his right knee disability warrant an increased disability rating. The Joint Motion found that a remand was necessary due to the Board’s failure to provide the Veteran with an examination of the right knee that complies with Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the parties found that the July 2017 examiner provided an insufficient rationale for his inability to opine as to any additional functional loss after repetitive use over time as he did not solicit any information from the Veteran or explain why he could not offer such an opinion. The parties specified that a new examination should conduct all range of motion testing as required by Correia. As to the right knee instability, the parties found that the Board failed to discuss material evidence relevant to a higher disability rating for right knee instability. Specifically, the July 2017 VA examiner reported that he could not perform passive range of motion testing because such testing would be deleterious due to his instability. An October 13, 2014 treatment note reflects that the Veteran used bilateral knee braces for stability. A July 31, 2014 treatment note the Veteran reported that his knees felt very weak since his ankle surgery and that he was referred to physical therapy for assistance with gait stability. For the reasons above, an adequate VA examination is not of record. An additional VA examination is therefore required to provide findings compliant with Sharp, 29 Vet. App. 26 and Correia, 28 Vet. App. 158. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As right knee instability will be addressed during the new VA examination, adjudication of a separate disability rating for instability is deferred pending the findings in the VA examination. A full disability picture for the Veteran’s right knee is not yet of record. The Board notes that an April 2017 VA treatment record indicated that the Veteran received Supplemental Security Income (SSI) disability benefits from the Social Security Administration (SSA). Although the record does not indicate that the AOJ has attempted to obtain SSA records, neither the Veteran nor the other evidence of record has suggested that these records are relevant to his claims on appeal. As such, the Board concludes that the Veteran's SSA records need not be obtained on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ankle osteochondral defect and instability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner test for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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 the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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 the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up. 3. After the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.