Citation Nr: 21006977 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-25 750 DATE: February 8, 2021 REMANDED Entitlement to an increased disability rating greater that 10 percent for residuals of right ankle sprain is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1996 to August 1998. The matter comes to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In April 2014, the AOJ issued a rating decision that increased the disability rating assigned to the Veteran’s service-connected residuals of right ankle sprain; the disability rating under Diagnostic Code (DC) 5299-5271 was increased from zero to 10 percent. The Veteran timely disagreed in an October 2014 Notice of Disagreement (NOD) and perfected his appeal in a May 2017 VA Form 9. In August 2019, a Board hearing was conducted. The hearing transcript has been associated with the Veteran’s file. Then, in November 2019, the Board issued a remand for the AOJ to consider medical evidence that had been incorporated into the record since the issuance of its March 2017 Statement of the Case. In August 2020, the AOJ readjudicated the Veteran’s claim and declined to grant a greater than 10 percent disability rating. Later, in October, the Veteran’s case was returned to the Board. Entitlement to an increased disability rating greater that 10 percent for residuals of right ankle sprain is remanded. The Veteran contends his right ankle disability has worsened since the last VA disability examination for his service-connected residuals of right ankle sprain (right ankle disability). See Transcript dated August 2019 at 6. Although the Board regrets the delay, the Veteran’s claim must be remanded for a new VA disability examination before the Board can decide on the merits. This is because a new VA disability examination is required to evaluate the current severity of his right ankle disability. The VA has a duty to assist claimants and must make “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for benefits.” 38 U.S.C. § 5103A(a)(1). The duty to assist also requires VA to provide a contemporaneous medical examination when the Veteran asserts or the evidence indicates that the disability has worsened since the last VA examination or the record does not adequately reveal the current state of the disability. Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). To trigger the need for a new examination, there must at least be an allegation that the claimant’s condition has worsened. Id. The record reflects that, in March 2017, a VA disability examination was conducted to evaluate the severity of his right ankle disability. Then, during his August 2019 Board hearing, he testified that, since his last disability examination, he has observed greater instability at his right ankle. See Transcript dated August 2019 at 6. The Veteran reported described the instability as chronic. He stated that if he steps on items, like small as pebbles, his ankle will turn. Id at 5. He also testified that he observes pain when he bends his right ankle and walks on it. Id. He stated he normally does not go to the doctor for complaints about pain at his right ankle, unless it is a severe sprain. Id. at 9. And he testified that his right ankle disability has interfered with his work in law enforcement. He reports that some of the times he sprained his ankle, he had to take time off of work; he stated it was a day or two. And there has been at least one occasion that he was placed on light duty. Id. at 7. The record reflects that, since his August 2019 Board hearing, VA disability examinations have been conducted to evaluate his knees as well as his calf muscles—but not his right ankle. See October 2019 VA DBQ Knee and Lower Leg Conditions; November 2019 VA DBQ Muscle Injuries. Also, when the AOJ decided the most recent Supplement Statement of the Case, it relied on the findings from the March 2017 disability examination, which pre-dates his claims of worsening symptoms. Turning to the Veteran’s claim for disability compensation, the Board finds a new VA disability examination is necessary to evaluate the Veteran’s claims of worsening symptoms. The Veteran is competent to report that, since his last disability examination, he has observed greater instability at his right ankle. Layno v. Brown, 6 Vet. App. 465, 467-70 (1994). And now that the Veteran has asserted his disability has worsened, the Board finds the record does not adequately portray the current state of his disability. So, a new VA disability examination is warranted. Palczewski, 21 Vet. App. at 182-83. Accordingly, the VA should schedule the Veteran for a new examination to determine the current severity of right ankle disability. The matter is 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 residuals of right ankle sprain. The examiner should report all signs and symptoms necessary for evaluation of the Veteran’s right ankle disability under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) on active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner should specifically indicate whether the Veteran experiences any limitation of motion that is attributable to pain and at what point during the range of motion. 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. 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 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. 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 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 should also report the effect the Veteran’s service-connect residuals of right ankle sprain has on his occupational functioning and daily activities. In doing so, the examiner should consider the following: (a.) The Veteran’s statement that, since his March 2017 VA disability examination, his right ankle has become more unstable. He reports that if he steps on small items, like a pebble, his ankle will turn. (b.) His statement that he observes pain at his right ankle when he bends it. Also, when he walks on it. (c.) His statement that his service-connected residuals of right ankle sprain has interfered with his work in law enforcement, to include loss of work due to ankle sprains. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.