Citation Nr: 21021682 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-23 123A DATE: April 13, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for right ankle fracture, postoperative, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1991 to December 1999. Her awards include the Army Commendation Medal. This matter initially came before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision. An informal hearing conference with a Decision Review Officer (DRO) was conducted in October 2014 and a report of that conference has been associated with the Veteran’s claims file. In January 2015, a DRO assigned a 10 percent disability rating for right ankle fracture, postoperative, from November 27, 2012. The Veteran requested a Board hearing before a Veterans Law Judge (VLJ) on her July 2015 substantive appeal (VA Form 9). She withdrew her hearing request in May 2016. In March 2019, the Board remanded this matter for further development. Entitlement to an initial rating higher than 10 percent for right ankle fracture, postoperative, is remanded. This appeal was previously before the Board in March 2019, at which time it was remanded to the agency of original jurisdiction (AOJ) so that the Veteran could be afforded a new VA examination to assess the current severity of her service-connected right ankle disability. In performing the examination, the Board directed the examiner to ask the Veteran to describe the extent of her functional loss during any flare-ups and, if possible, offer range of motion estimates based on that information. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran underwent a VA examination in August 2020, and the examiner noted her report of intermittent pain, her use of non-steroidal anti-inflammatory drugs, and her report of reduced range of motion due to pain. She also reported flare-ups that were manifested by worsening swelling and pain. After providing initial range of motion measurements, the examiner noted that pain significantly limited the Veteran’s functional ability with repetitive use and during flare-ups. However, the examiner indicated that he could not describe that functional loss in terms of range of motion because it was not possible to accurately estimate range-of-motion loss as the Veteran’s limitations were variable depending on the duration of repeated use over time or the severity of a flare-up. The examiner went on to note that frequency and duration of the most typical overuse/flare scenario were highly variable, and the Veteran was unable to articulate frequency or duration. The severity of overuse/flare scenarios is typically mild-to-moderate. Unfortunately, the Board finds that the August 2020 VA examination report is insufficient to adjudicate the Veteran’s claim as it is inconsistent with the holding in Sharp. Critically, although the examiner indicated that the Veteran was unable to articulate frequency and duration, there is nothing in the examination report to suggest that she was unable to describe the loss of range of motion during flare-ups or following repetitive use, including a description of the loss at its worst. Insofar as her limitations were variable depending on the duration of repeated use or the severity of a flare-up, such variability does not absolve VA of its duty to elicit the pertinent information. Therefore, to ensure an adequate record upon which to decide the Veteran’s claim on appeal, and to ensure compliance with the Court’s holding in Sharp, supra, the Veteran should once again be scheduled for a new VA examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Minneapolis VA Health Care System and are dated to August 2020. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Lastly, the Veteran should be provided another opportunity to identify any outstanding evidence. The matter is REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records from the Minneapolis VA Health Care System for the period since August 2020; and all such relevant records from any other sufficiently identified VA facility. 2. Give the Veteran an opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the appropriate authorization is provided. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an appropriate VA examination to determine the severity of her service-connected right ankle disability. The entire record must be made available to and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of her service-connected right ankle disability. Any indicated evaluations, studies, and tests should be conducted. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the right and left ankle. The examiner should also address the following: a) Based on all pertinent evidence of record, the examiner should describe all symptoms associated with the Veteran’s service-connected right ankle disability. b) The examiner should then ask the Veteran to report any range of motion loss during flare-ups or following repeated use over time. She should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Even if the evidence of record fails to include objective findings documenting the nature and severity of the Veteran’s service-connected right ankle disability during flare-ups or following repetitive use, the examiner must elicit relevant information as to her flare-ups and ask her to describe the additional functional loss, if any, she suffers during flare-ups or following repeated use. c) If the examination does not occur during a flare-up or following repetitive use, based upon the evidence of record and the information elicited on examination, is it at least as likely as not (50 percent probability or greater) that, during a flare-up or following repetitive use, the Veteran experiences marked limitation of right ankle motion? Also, is it at least as likely as not (50 percent probability or greater) that, during a flare-up or following repetitive use, the Veteran experiences less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion of the right ankle? If the examiner cannot provide the above-requested opinions without resorting to speculation, he or she should state (a) whether all procurable medical evidence has been considered, to specifically include the Veteran’s description as to the severity, frequency, and duration of flare-ups and her description as to the extent of functional loss during a flare-up and after repetitive use; (b) whether the inability is due to the limits of the medical community or the limits of the examiner’s medical knowledge; and (c) whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. (CONTINUED ON NEXT PAGE) All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.