Citation Nr: 21015887
Decision Date: 03/18/21	Archive Date: 03/18/21

DOCKET NO. 16-15 548A
DATE: March 18, 2021

REMANDED

Entitlement to a disability rating in excess of 10 percent for right knee arthritis is remanded. 

Entitlement to a disability rating in excess of 10 percent for left ankle sprain is remanded. 

Entitlement to a disability rating in excess of 10 percent for right ankle sprain is remanded. 

INTRODUCTION

The Veteran served on active duty from May 1989 to February 1996.

When this case was previously before the Board in September 2018, the above-noted issues were remanded for further development.  The case has since been returned for additional appellate review.  

REASONS FOR REMAND

While additional delay of the above-noted claims is unfortunate, the Board finds further development is required before the Veteran’s claims are decided.  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

In the course of the September 2018 remand, the Board fully explained that an assessment of the Veteran’s flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion were necessary to properly evaluate the Veteran’s bilateral ankle and right knee disabilities.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016).  The Veteran recently underwent VA ankle and knee examinations; however, like the prior examinations, the October 2019 VA examiner failed to provide these critical evaluative criteria.  As such, a remand is again required.  A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

Accordingly, these matters are REMANDED for the following actions:

Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected bilateral ankle and right knee disabilities.  All pertinent evidence of record should be made available to and reviewed by the examiner.  Any indicated studies should be performed. 

Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. 

In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. 

If the examiner is unable to conduct the required testing or concludes the required testing is not necessary, he or she should be directed to clearly explain why that is so.

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Fraser, 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.