Citation Nr: 21020882 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-41 660 DATE: April 8, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for right ankle strain is remanded. Entitlement to an initial rating in excess of 10 percent for left ankle strain is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2011 to July 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2015 by a Department of Veterans Affairs (VA) Regional Office. In November 2018, July 2020 and January 2021, the Board remanded the claims for additional development and they now return for further appellate review. 1. Entitlement to an initial rating in excess of 10 percent for right ankle strain. 2. Entitlement to an initial rating in excess of 10 percent for left ankle strain. In the November 2018 remand, the Board found, as relevant, that a May 2015 VA examination contained internally inconsistent findings regarding the presence of flare-ups of the Veteran’s bilateral ankle disabilities. Specifically, at such time, the examiner initially indicated that he did not report flare-ups, but found that the examination reported his statements describing functional loss during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, the claim was remanded in order to afford the Veteran another VA examination that adequately addressed the presence of flare-ups. Thereafter, at a September 2019 VA examination, the Veteran reported flare-ups of his bilateral ankle disabilities described as a worsening with movement and exertion. The examiner indicated that, while the examination was not being conducted during a flare-up, such was medically consistent with the Veteran’s statements describing functional loss during such event and estimated that dorsiflexion was limited to 10 degrees and plantar flexion was limited to 25 degrees during a flare-up. However, in the July 2020 remand, the Board found that, as the September 2019 VA examiner did not review the Veteran’s claims file in connection with such examination, it was inadequate for rating purposes as it was unclear if he was sufficiently informed of additional or increased symptoms and limitations during flare-ups. Thus, the case was again remanded for another VA examination. At a September 2020 VA examination, the Veteran again reported flare-ups, which he described as “pain is random,” and the examiner found that, while the examination was not being conducted during a flare-up, such was medically consistent with the Veteran’s statements describing functional loss during such event. However, he estimated that, during a flare-up, the Veteran would retain full range of ankle motion bilaterally with dorsiflexion to 20 degrees and plantar flexion to 45 degrees. Thus, in light of the inconsistency between such determination and the Veteran’s statement that he continued to have flare-ups, which the September 2019 VA examiner estimated would result in additional limitation of motion, the Board remanded the case in January 2021 in order to clarify why the Veteran’s flare-ups were estimated not to have resulted in additional loss of range of motion. In this regard, the examiner was directed to obtain information from the Veteran regarding the severity, frequency, and duration of flare-ups and estimate the degree of functional loss during flare-ups. If it was not possible to provide a specific measurement based on direct observation, the examiner was directed to provide an estimate, if possible, of the additional impairment due to flare-ups based on the Veteran’s statements and the other evidence of record. In doing so, the examiner was directed to discuss the September 2019 examiner’s estimates of range of motion during flare-ups and with repeated use over time, and offer an explanation for any change from such examination. Thereafter, in February 2021, the Veteran underwent another VA examination, at which time he denied experiencing flare-ups of his bilateral ankle disabilities and the examiner found that there would be no additional functional loss, to include in his range of motion, as a result of such event. He further stated that, while there is no reason to doubt the September 2019 VA examiner’s estimates, sprains and strains frequently improve over time, which seemed to have occurred in the Veteran’s case over the prior 16 months, i.e., since September 2019, and the current examination was negative for flare-ups or significant limitations after repeated use over time. Thus, while the February 2021 VA examination clearly shows that the Veteran does not currently experience flare-ups of his bilateral ankle disabilities, which the examiner explained was evidence of improvement in his condition, there still remains a question of the severity and resulting functional loss, to include in his range of motion, of any flare-ups present prior to such date. In this regard, as indicated previously, it is unclear whether the Veteran experienced flare-ups at the May 2015 VA examination, and an examiner has not yet reconciled the conflicting findings in the resulting limitation of function, to include in his range of motion, as a result of flare-ups reported at the September 2019 and September 2020 VA examinations. Thus, the Board finds an opinion necessary to adequately address such matters. Furthermore, as of February 7, 2021, VA amended the rule pertaining to the evaluation of musculoskeletal disabilities, to include Diagnostic Code 5271 pertaining to limitation of ankle motion, under which the Veteran’s service-connected bilateral ankle disabilities are rated. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 25,450 (November 27, 2020). Thus, in the readjudication of the Veteran’s claims, the Agency of Original Jurisdiction (AOJ) should consider the applicability of such newly amended rating criteria. The matters are REMANDED for the following actions: Return the record, to include a copy of this remand, to the February 2021 VA examiner. If he is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a review of the record, to include the specific documents cited herein, the examiner should address the following inquiries: (A) The examiner should review the May 2015 VA examination pertaining to the Veteran’s bilateral ankle disabilities and indicated (1) whether, based on such report and the description of such disabilities therein, he experienced flare-ups of such disability and, if so, (2) offer an opinion as to severity, frequency, and duration of such flare-ups, and the estimated degree of functional loss during flare-ups expressed, if possible, in terms of degrees of range of motion. (B) The examiner should review the September 2019 and September 2020 VA examinations pertaining to the Veteran’s bilateral ankle disabilities and reconcile the discrepancy between the former examination, which indicated that his dorsiflexion would be limited to 10 degrees and plantar flexion would be limited to 25 degrees during flare-ups, and the latter examination, which indicated that he would retain full range of ankle motion bilaterally with dorsiflexion to 20 degrees and plantar flexion to 45 degrees during flare-ups, in light of the fact that he reported flare-ups at both examination. If the examiner cannot provide the foregoing opinions without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. A rationale for any opinion offered should be provided. 2. In the readjudication of the Veteran’s claims, the AOJ should consider the applicability of the newly amended regulations governing the evaluation of musculoskeletal disabilities, to include Diagnostic Code 5271 pertaining to limitation of ankle motion, under which the Veteran’s service-connected bilateral ankle disabilities are rated, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 25,450 (November 27, 2020). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.