Citation Nr: 21022526 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 12-29 260 DATE: April 16, 2021 REMANDED Entitlement to a disability rating in excess of 0 percent for status post laceration of the right forearm is remanded. Entitlement to a disability rating in excess of 10 percent for status post ligament injury with residuals of pain in the right ankle (formerly rated as right ankle sprain) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from January 1995 to January 1999 and from November 2001 to June 2002. Most recently, the Veteran testified before the undersigned Veterans Law Judge in a virtual hearing in February 2021. A copy of the hearing transcript is of record. 1. Entitlement to a disability rating in excess of 0 percent for status post laceration of the right forearm is remanded. The Veteran maintains entitlement to a disability rating in excess of 0 percent for status post laceration of the right forearm, currently rated as a muscle group VII injury under Diagnostic Code 5307. At his hearing, the Veteran testified that his right forearm disability impacted the muscles and tendons of the forearm, impairing his ability to grasp and causing pain when moving his fingers. The record reflects that the Veteran has not been provided a VA examination specifically concerning the affected muscle group since one was performed in September 2007. To ensure that the record reflects the current severity of his disability, a contemporaneous examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). 2. Entitlement to a disability rating in excess of 10 percent for status post ligament injury with residuals of pain in the right ankle (formerly rated as right ankle sprain) is remanded. The Veteran maintains entitlement to a disability rating in excess of 10 percent for status post ligament injury with residuals of pain in the right ankle (formerly rated as right ankle sprain). At his hearing, the Veteran testified that his right ankle disability caused instability, weakness, pain, and fatigability (he could not walk 300 meters before having to stop due to pain). He reported daily flare-ups and indicated that he would undergo surgery soon. The Veteran’s reports, specifically that surgery was being contemplated by his medical providers, indicate that his right ankle disability has worsened since his last VA examination in August 2017. To ensure that the record reflects the current severity of his disability, a contemporaneous examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). The matters are REMANDED for the following action: Schedule the Veteran for a muscle injury examination and for a right ankle examination by an appropriate clinician(s) to determine the current severity of his service-connected status post laceration of the right forearm and of his service-connected status post ligament injury with residuals of pain in the right ankle. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the current 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. 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). In so doing, the examiner must 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. 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). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.