Citation Nr: 21010543 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 20-02 559 DATE: February 25, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for a left ankle joint replacement, post-tibia-fibula fracture, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from June 1961to June 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in September 2020, in part, for a new examination of the Veteran’s left ankle, but that development has not been adequately completed. A remand by the Board of Veterans Appeals confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a disability rating in excess of 20 percent for a left ankle joint replacement, post-tibia-fibula fracture, is remanded. In its September 2020 remand, the Board clarified that because the Veteran had undergone ankle replacement surgery in June 2013, his left ankle disability could alternatively be rated under Diagnostic Code 5056, which outlines criteria for rating ankle replacements. The Veteran is currently in receipt of a 20 percent rating for marked limitation of motion of his ankle under Diagnostic Code 5271. This is the highest schedular rating under Diagnostic Code 5271. Diagnostic Code 5056, in contrast, provides a higher, 40 percent rating, when there is prosthetic replacement of the ankle joint with chronic residuals consisting of severe painful motion or weakness. Though the Board requested that an examiner address whether such residuals exist, the November 2020 examiner did not complete that portion of the examination report pertaining to “Surgical Procedures” – i.e., Part VIII, on page 10 – which includes medical questions specific to the presence of post-surgical pain, weakness and other potential residuals. A remand is required so that a complete assessment can be performed. The Board adds that in a July 15, 2019 VA Physical Therapy Treatment Plan Note added to the record after the Board’s prior remand, it was noted that the Veteran had undergone physical therapy for his left ankle at a facility outside of VA one to two years prior. On remand, the Veteran should be asked to submit records of such outside care, or authorize VA to obtain private treatment records on his behalf. The matters are REMANDED for the following action: 1. Ask the Veteran to submit, or authorize VA to obtain on his behalf, records of private care for his left ankle disability, to specifically include physical therapy records. 2. Schedule the Veteran for a VA examination to assess the current severity of his left ankle disability. The claims folder must be sent to the examiner for review. The examiner should take a history from the Veteran as to the progression of his symptoms. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the agency of original jurisdiction (AOJ) should consider whether other virtual options, to include telehealth interviews or examinations are possible. The Veteran should be asked to identify the frequency, severity and duration of flare-ups. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant and specific information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use. Upon review of the Veteran’s medical history, and after examination and interview of the Veteran, the examiner should indicate whether the Veteran suffers from chronic residuals of his total ankle replacement consisting of severe painful motion or weakness, to include during flare-ups or after repetitive use. 3. Then, readjudicate the issue on appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.