Citation Nr: 21012318 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 09-14 434 DATE: March 4, 2021 REMANDED Entitlement to a rating in excess of 30 percent for residuals of a right ankle fracture with ankylosis is remanded. Entitlement to a rating in excess of 40 percent for neuropathy of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 14, 1980, and then again from October 1981 to October 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an September 2007 rating decision by the Department of Veterans Affairs (VA). The Veteran’s claims were previously remanded by the Board in October 2015, after a Joint Motion for Partial Remand (JMPR) was granted by the Court of Appeals for Veterans Claims (Court) on July 17, 2014. See JMPR ( July 17, 2014 ). The Veteran was issued a Supplemental Statement of the Case (SSOC) on October 15, 2020. The Board accordingly reasserts jurisdiction. By way of background, the Veteran’s claims were previously before the Board on October 7, 2015, in order to carry out the terms of a JMPR. See BVA Remand (Oct. 7, 2015); JMPR (July 17, 2014), supra. As of those dates, the Veteran’s right ankle disorder was rated as 20 percent disabling under Diagnostic Code 5271 (limited motion of the ankle), 38 C.F.R. § 4.71a, and the right lower extremity neuropathy was rated as 30 percent disabling under Diagnostic Code 8522 (complete paralysis of the superficial peroneal nerve), 38 C.F.R. § 4.124a. In sum and substance, the Veteran’s claims were remanded for extraschedular consideration; meanwhile, the claims on appeal have been reclassified under alternative diagnostic codes so neither of the disorders have maximum schedular ratings anymore. 1. Entitlement to a rating in excess of 30 percent for residuals of a right ankle fracture with ankylosis is remanded. In developing the Veteran’s claims for increased ratings, the right ankle was later recharacterized under Diagnostic Code 5270 (ankylosis) and rated as 30 percent disabling effective August 11, 2007, while continuing the 20 percent rating from February 16, 2007 until prior to August 11, 2007. See Rating Decision (Nov. 2, 2015); 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5271. The Board notes in passing that this increased rating is more favorable than the JMPR, which indicated that a 20 percent rating under Diagnostic Code 5271 from February 16, 2007 to prior to June 29, 2012 should not be disturbed. See JMPR (July 17, 2014) at Page 2, Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007). Notwithstanding the above, because higher ratings are available throughout the rest of the appellate period (on both schedular and extraschedular bases), this claim remains on appeal accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). The last VA examination of record for the Veteran’s right ankle appears to have been administered on June 29, 2012. See VA Examination ( June 29, 2012 ), at Page 7. Since this examination, the Veteran’s ankle has been afforded a higher rating under a new diagnostic code. The Board concludes that an updated VA examination is warranted as the evidence suggests that the symptomatology has worsened and that a new examination is required to accurately assess her rating. See Weggerman v. Brown, 5 Vet. App. 281 (1993); Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to a rating in excess of 40 percent for neuropathy of the right lower extremity is remanded. Furthermore, with respect to the Veteran’s right lower extremity disorder, this was subsequently recharacterized under Diagnostic Code 8521 (complete paralysis of the common peroneal nerve), 38 C.F.R. § 4.124a, and was given a maximum schedular rating of 40 percent effective September 16, 2008. See Rating Decision (Jan. 6, 2017). To the extent that higher ratings may be available throughout the rest of the appellate period by virtue of alternative diagnostic codes, the Board concludes that this claim also remains on appeal accordingly. See AB v. Brown, supra. Meanwhile, the last VA examination of record for the Veteran’s neuropathy appears to have been administered on December 11, 2015. See VA Exam (Dec. 11, 2015), at Question No. 11 et seq. The Board notes that there is subsequent evidence that the Veteran’s symptomatology may have worsened as pertaining to this claim as well. See, e.g.: VA Treatment Records ( Aug. 21, 2015 ) (“right leg unable to flex knee or dorsi/plantar flex ankle”); ( Jan. 8, 2016 ) (“RLE: normal sensation to normal sensation to LT above the knee, no (0/2) sensation to the entire leg below the knee. 0-1/5 strength hip flexion, KE/KF, ADF, APF, ankle inversion/eversion, toe flex/ext. Of note, at one point while sitting the patient did spontaneous extend her knee against gravity in order to show me a bump on the lateral aspect of her foot.”). Furthermore, the Board is unable to reconcile contrary VA examination findings whereby the Veteran’s sciatic nerve of the right lower extremity (which has a maximum schedular rating of 80 percent, 38 C.F.R. § 4.124a, Diagnostic Code 8520) was moderately severely incompletely paralyzed upon December 2013 examination, see VA Exam ( Dec. 2, 2013 ), at Question No. 11a, but then normal two years later, see VA Exam ( Dec. 11, 2015 ), at Question No. 11a. Ultimately, for the claim for increased ratings for the right lower extremity neuropathy as well as for the right ankle, the Board concludes that an updated VA examination is warranted, with evidence suggesting that the symptomatology has worsened and that a new examination is required to accurately assess her rating. See Weggerman v. Brown, supra; Allday v. Brown, supra; Caffrey v. Brown, supra; Snuffer v. Gober, supra. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include any VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative, and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. VA medical records as of October 15, 2020 appear to be associated with the claims file, but no subsequent records after that date are of record. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the receipt of any outstanding records, schedule the Veteran for all appropriate VA examinations to determine the current nature and severity of her right ankle fracture with ankylosis and right lower extremity neuropathy. The need for further in-person examination is left to the discretion of the examiner. The record, including a complete copy of this remand, must be made available for review in connection with the examination, and all indicated tests should be performed. All necessary tests and studies should be conducted. All manifestations and functional impairments should be described in detail. Statements clarifying all affected nerves as pertaining to the Veteran’s radiculopathy, and reconciling conflicting VA examination findings between December 2013 (identifying the right sciatic nerve as moderately severely incompletely paralyzed) and December 2015 (identifying same as normal upon examination) would be immensely helpful to the Board. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, 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). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.