Citation Nr: 21020751 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 13-33 984A DATE: April 8, 2021 REMANDED Entitlement to service connection for a right knee disability, to include as a result of a service-connected disability, is remanded. Entitlement to an initial rating in excess of 10 percent for the residuals of a right anterior fibulotalar ligament rupture is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from May 1981 to December1982. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in November 2020, which granted a joint motion for remand (JMR) vacating a November 2019 Board decision and remanding the issues on appeal for additional development. The matter initially arose from a June 2013 rating decision by the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2016, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record.   1. Entitlement to service connection for a right knee disability, to include as a result of a service-connected disability, is remanded. 2. Entitlement to an initial rating in excess of 10 percent for the residuals of a right anterior fibulotalar ligament rupture is remanded. In its November 2020 order and JMR, the parties agreed found the Board’s November 2019 decision had erroneously relied on a March 2018 VA examination report that did not comply with January 2018 remand instructions as to the right ankle disability. It was also found that the March 2018 opinion as to aggravation of the right knee disability was inadequate in failing to provide a reasoned medical examination addressing why the Veteran’s work-related knee injury could not have been aggravated by the right ankle disability. The parties agreed that a new examination and opinion were needed to address the aforementioned deficiencies. As such, an additional medical examination is required prior to appellate review. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to address his right knee disability claim and to determine the current severity of his service-connected residuals of a right anterior fibulotalar ligament rupture. The examiner must review the claims file. As to the right knee disability, the examiner should provide an opinion as to whether it is at least likely as not that the Veteran’s right knee disability: a. had its onset in service or is otherwise etiologically related to active service. b. was proximately due to the Veteran’s service-connected right ankle disability. c. underwent any incremental increase in disability, regardless of its permanence, due to the service-connected right ankle disability. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Provide a rationale to support the opinion(s). As to the right ankle disability, all manifest symptoms should be identified with an assessment as to the degree of severity. The examiner must record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing information to the right and left ankles, must address the necessary findings to evaluate functional loss during flare-ups, or must clearly explain why the required testing cannot be completed or is not necessary. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. Similarly, if it is not possible to provide a specific measurement without speculation, 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). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.