Citation Nr: 21006727 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-03 348 DATE: February 5, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from September 1968 to May 1974. In March 2018, the Veteran presented sworn testimony during a Travel Board hearing in Winston-Salem, North Carolina, before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 1. Entitlement to a rating in excess of 20 percent for a left ankle disability is remanded. The Board remanded this claim in May 2018 and February 2020 for new VA examinations. The August 2018 examiner failed to opine on whether the Veteran does have drop foot (to include performing any necessary testing) or whether it was related to his service-connected left ankle disability, despite being directed to do so. As such, the Board again remanded the claim in February 2020 for a new examination and opinion that addressed whether the Veteran had drop foot, to include performing any necessary testing. The March 2020 VA-VES examiner did not perform any electrodiagnostic testing and stated that he had not done so because it was “not required per our contract.” The contractual arrangement for services between VA and its medical contractors does not eliminate the Board’s duty to assist the Veteran in developing his claim. As the examiner again failed to obtain electrodiagnostic testing to determine whether there is a neurological component to his ankle disability, this claim must unfortunately be remanded yet again. See Stegall v. West, 11 Vet. App. 268 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate examiner to address the current nature and severity of his left ankle disability. The examiner must review pertinent documents in the Veteran’s claims file in conjunction with the examination. This must be noted in the examination report. The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected left ankle disability. All appropriate testing, including range of motion testing, should be performed. THE EXAMINER MUST SPECIFICALLY STATE WHETHER THE VETERAN HAS ANY DEGREE OF DROP FOOT. In providing this opinion, the examiner should address the Veteran’s reports of being told he has mild drop foot. ANY APPROPRIATE TESTING, TO INCLUDE POSSIBLE EMG OR NCS TESTING, SHOULD BE COMPLETED. IF ELECTRODIAGNOSTIC TESTING IS NOT REQUIRED TO DETERMINE THE VETERAN’S DIAGNOSIS, THE EXAMINER MUST EXPLAIN WHY NOT. If the examiner finds that the Veteran has drop foot, s/he should opine as to: (a.) whether it is at least as likely as not that the drop foot is related (caused or aggravated by (*incremental increase)) to his service-connected left ankle disability. • The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. Rationale for all requested opinions shall 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. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.