Citation Nr: 21006575 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-23 321 DATE: February 4, 2021 REMANDED Entitlement to a rating in excess of 10 percent for residuals of right ankle fracture (ankle disability) is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine with spondylosis (back disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1990 to May 1994 and March 2003 to March 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, in pertinent part, the Board denied the Veteran’s back and right ankle increased rating claims. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in May 2020, the Court granted the parties’ April 2020 Joint Motion for Partial Remand (JMR) to vacate the Board’s decision and remand the case for readjudication in accordance with the JMR. 1. Entitlement to an increase rating in excess of 10 percent for residuals of right ankle fracture is remanded. The parties to the JMR determined that the Board relied on inadequate VA examination report dated in November 2017, as the examination does not comply Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (the examiner should “estimate the functional loss that would occur during flares.”). Additionally, the Board notes that the November 2017 VA examination report does not comply with Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, a new examination is needed on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Any outstanding treatment records should also be secured. 2. Entitlement to an initial increased rating in excess of 10 percent for degenerative disc disease of the lumbar spine with spondylosis is remanded. After the appeal was certified to the Board in October 2018, VA treatment records and an August 2020 VA back examination were added to the record. The Veteran was notified by letter of his rights regarding this evidence in December 2020. He was notified that, if he did not respond within 45 days, his appeal would be remanded to the Agency of Original Jurisdiction (AOJ) for review. The Veteran did not respond to this letter. Accordingly, the matter is remanded to the AOJ for issuance of a supplement statement of the case (SSOC). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his right ankle disability. The claims file, to include a copy of this remand must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. The examiner is asked to address the following: Full range of motion testing must be performed where possible. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in nonweight-bearing; and (5) the opposite undamaged joint, if possible. 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. Considering the Veteran’s reported history, please also provide an opinion describing functional impairment of the Veteran’s right ankle due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale shall be given for all opinions and conclusions expressed. 4. Readjudicate the Veteran’s claims, considering all evidence of record since the March 2018 Statement of the Case. If any benefits sought remain denied, issue a SSOC. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.