Citation Nr: 21009941 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-16 680A DATE: February 23, 2021 REMANDED Entitlement to an initial compensable rating for residuals of right ankle arthrotomy (hereinafter right ankle disability) prior to July 1, 2015, and in excess of 10 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1988 to August 1988, from June 1989 to August 1989, and from October 1989 to June 2009. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in August 2017. The hearing transcript is of record. The Board remanded the claim in February 2018 and March 2020 for further development by the RO. The case has been returned to the Board for further appellate action. Entitlement to an initial compensable rating for right ankle disability prior to July 1, 2015, and in excess of 10 percent thereafter is remanded Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The March 2020 Board remand directives instructed the RO to obtain a VA examination of the Veteran’s right ankle that is compliant with the criteria established by Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds that this was not done. While the RO obtained an August 2020 VA examination, the examiner did not record values for active, passive, weight-bearing or non-weightbearing range of motion. Where the Board fails to ensure substantial compliance with Board remand directives, remand is appropriate. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate medical professional to determine the current severity of the Veteran’s right ankle disability. The examiner must record all pertinent medical complaints, symptoms, and clinical findings in detail. Range of motion testing for both ankles should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the Veteran experiences pain during range of motion testing, the examiner must note the point at which pain begins. 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 this is so. The examiner should consider whether there is likely to be additional range of motion loss during flare-ups and as a result of pain, weakness, fatigability, or incoordination, irrespective of whether the Veteran is experiencing a flare-up at the time of the examination and with consideration of the Veteran’s statements regarding flare-ups, specifically their frequency, duration, characteristics, severity, and/or associated functional loss. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to deficiency in the state of general and 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). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.