Citation Nr: 21008140 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 13-33 036 DATE: February 11, 2021 REMANDED 1. Entitlement to an initial rating higher than 10 percent for a disability of the right foot, including degenerative arthritis, is remanded. 2. Entitlement to an initial rating higher than 10 percent for a disability of the left foot, including degenerative arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1987 to November 1987, and from October 1990 to June 2011. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2019 decision, the Board granted separate 10-percent ratings for each foot, but denied higher ratings. In a June 2020 Order, the United States Court of Appeals for Veterans Claims granted a joint motion for remand (JMR), and vacated the Board’s September 2019 decision to the extent it denied higher ratings for the Veteran’s bilateral foot disabilities. It remanded the matter for action consistent with the terms of the joint motion. 1. Entitlement to an initial rating higher than 10 percent for a disability of the right foot, including degenerative arthritis, is remanded. 2. Entitlement to an initial rating higher than 10 percent for a disability of the left foot, including degenerative arthritis, is remanded. In the JMR, the parties agreed that the March 2018 VA examination report did not comply with the Board’s January 2018 remand directives. More specifically, the Board instructed that the examiner should “[t]est any joints involved for pain on both active and passive motion, in weight bearing and nonweight bearing.” The JMR found that such an opinion “was particularly necessary in light of . . . Correia v. McDonald, which holds that medical examinations should, whenever possible, include the results of range of motion (ROM) testing for active ROM, passive ROM, and with weight-bearing and non-weight-bearing. 28 Vet. App. 158, 169-70 (2016).” The JMR states that while the March 2018 examiner tested for pain in weight bearing and non-weight bearing for both feet, and noted that there was no pain on passive motion, the examiner did not address whether there was pain on active motion or provide ROM testing for active motion. Therefore, the parties to the JMR found that the March 2018 VA examination failed to comply with the Board’s January 2018 remand directive, and concluded that a remand is required for the Board to ensure compliance with that directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Court or the Board imposes upon the Secretary a “duty to ensure compliance with the terms of the remand.”) The JMR adds that the Board should ensure that the new examination complies with the requirements of Correia. Accordingly, a new foot examination must be arranged that includes findings that comply with Correia and the Board’s January 2018 remand directives. The matter is REMANDED for the following actions: 1. Add to the file the Veteran’s outstanding VA treatment records, if any, dated since April 2019, and provide him an opportunity to identify any outstanding relevant private treatment records he wishes to submit or have VA obtain on his behalf. 2. Arrange for the Veteran to attend a VA examination to assess the severity of his service-connected bilateral foot disabilities. The examiner must conduct a thorough examination. As part of the examination, the examiner must test any joints involved for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. To the extent possible, the examiner must describe the severity, frequency, and duration of any flare-ups, their effect on functioning, and precipitating and alleviating factors. If the Veteran is not experiencing a flare-up when examined, the examiner must estimate additional loss of range of motion, if any, during a flare-up or on repeated use over time, or explain why the available information, including the Veteran’s statements and the examination findings, are not sufficient for that purpose. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, Associate 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.