Citation Nr: 21006621 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 12-13 555 DATE: February 4, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for left ankle strain residuals from April 22, 2010 to July 9, 2015 is remanded. Entitlement to an initial disability rating in excess of 10 percent for right ankle strain residuals from April 22, 2010 to July 9, 2015 is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to May 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2010 rating decision of Department of Veterans Affairs (VA) Regional Offices (ROs). In August 2013, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing is of record. In a September 2019 decision, the Board denied entitlement initial disability ratings in excess of 10 percent for left and right ankle strain residuals from April 22, 2010 to July 9, 2015, respectively. The Veteran appealed that decision and, in October 2020, the U.S. Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand of the September 2019 denial of those issues. REASONS FOR REMAND Entitlement to an initial disability rating in excess of 10 percent for left ankle strain residuals from April 22, 2010 to July 9, 2015 is remanded. Entitlement to an initial disability rating in excess of 10 percent for right ankle strain residuals from April 22, 2010 to July 9, 2015 is remanded. In a September 2019 Board decision, the Board noted that the Veteran’s ankle disability ratings were based on Diagnostic Code 5271 which states that hat a 10 percent evaluation is warranted for moderate limitation of motion of the ankle, whereas a 20 percent evaluation is in order for marked limitation of motion. The Board further noted that words such as moderate and marked are not defined in the VA Schedule for Rating Disabilities (Rating Schedule) and that VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The Board stated that because the Rating Schedule offers no further guidance on the issue, it would rely upon on Webster’s definitions of the terms used. “Marked” means noticeable, Webster’s II New College Dictionary, 670 (1995). “Moderate” means of average or medium quantity. Id. at 704. Following a review of the evidence, the Board found that there was no evidence that suggested there was a marked or noticeable limitation of motion, and denied a disability rating in excess of 10 percent. In its October 2020 Order, the Court remanded the issues on appeal pursuant to the parties’ Joint Motion for Remand which stated that the Board inadequately explained why the evidence demonstrated moderate, as opposed to marked, limitation of motion citing Withers v. Wilkie, 30 Vet. App. 139, 146 (2018) (“The Board must explain its assessment of evidence central to its decision so that the claimant can understand the ‘precise basis’ for the Board’s determinations and [the] can effectively review them”)(quoting Frost v. Shulkin, 29 Vet. App. 131, 139(2017)). Having noted the ambiguity in the Diagnostic Code in determining whether an ankle’s limitation of motion is moderate or marked, the Board finds that a retroactive medical opinion would be helpful, given that the Veteran’s October 2010 and March 2013 VA examinations did not thoroughly note the impact of flare-ups or repetitive use on the Veteran’s range of motion. A medical opinion should be sought following a review of the record, to include October 2010 and March 2013 VA examinations to determine, retroactively, the estimated limitation of motion caused by a flare-up and following repetitive motion. The matters are REMANDED for the following action: 1. Following a review of the record and examination, the examiner should provide retrospective findings regarding pain on range of motion testing and an estimation of functional loss, for the October 2010 and March 2013 VA examinations. (a.) The examiner should estimate the amount in degrees of range of motion lost due to pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion experienced by the Veteran at the time of VA examinations conducted in October 2010 and March 2013. (b.) The examiner should also estimate the amount in degrees of range of motion lost due to flare-ups experienced by the Veteran at the time of VA examinations conducted in 2010 and 2013. In doing so, the examiner should consider the frequency, duration, characteristics, precipitating and alleviating factors, and severity of the Veteran's flare-ups, and/or the extent of functional impairment the Veteran experiences during a flare-up of symptoms. (c.) The examiner should also review the 2012 VA examination and opine, if possible, whether the Veteran suffered from additional limitation of motion after repeated use over time. Rationale for any opinion rendered must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 2. Then readjudicate the claims remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.