Citation Nr: 21022949 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 10-47 139A DATE: April 19, 2021 REMANDED A rating higher than 10 percent for degenerative joint disease (DJD) of the left foot and ankle between February 2, 2013 and April 24, 2014 is remanded. A rating higher than 10 percent for tarsal tunnel syndrome (TTS) of the right foot and ankle from April 24, 2014 is remanded. A rating higher than 10 percent for TTS of the left foot and ankle from April 24, 2014 is remanded. A rating higher than 20 percent for DJD of the right foot and ankle from April 24, 2014 is remanded. A rating higher than 10 percent for DJD of the left foot and ankle from April 24, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1960 to July 1980 in the U.S. Army. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in October 2013. A copy of the hearing transcript is of record. This case has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Increased rating for DJD of the left foot and ankle between February 2, 2013 and April 24, 2014 The issue of entitlement to a rating higher than 10 percent for DJD of the left foot and ankle between February 2, 2013 and April 24, 2014 was denied in a February 2019 Board decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Memorandum Decision, the Court set aside and remanded the issue to the Board because the Board provided inadequate reasons or bases for its finding that VA had satisfied its duty to assist. The Veteran was afforded a VA examination in February 2013. During the October 2013 Board hearing, the Veteran reported that his left foot and ankle disability increased in severity. He was afforded another VA examination in April 2014; however, the examination was found inadequate in a July 2017 Board remand. The Veteran submitted a private examination in November 2013. The examiner noted that the Veteran experienced flareups that cause him to be incapacitated and unable to walk due to pain, however the examiner did not estimate any additional loss of range of motion during flareups or repeated use over time. Accordingly, the Board finds that remand is necessary to obtain a retrospective opinion as to the severity of the Veteran’s left foot and ankle DJD, including functional loss due to flareups and repeated use over time in terms of degrees of range of motion. Increased ratings for TTS and DJD of the left and right foot and ankle from April 24, 2014 The issues of entitlement to ratings higher than 10 percent for left and right foot and ankle TTS and left foot and ankle DJD from August 24, 2014 and a rating higher than 20 percent for right foot and ankle DJD from August 24, 2014 were most recently before the Board in June 2019, at which time the issues were remanded for additional development. Unfortunately, the Board finds that there has not been substantial compliance with the Board’s previous remand instructions and, therefore, further action is warranted. A remand by the Board confers upon the Veteran, 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). Although further delay is regrettable, the Board finds that remand is again necessary to obtain an adequate medical examination. The June 2019 Board remand instructed the examiner to address range of motion of the ankles expressed in degrees for active motion, passive motion, weight-bearing, and non-weight bearing, however the examiner only noted whether there was objective evidence of pain on examination. Accordingly, the Board finds that remand is warranted to provide the Veteran a new VA examination that substantially complies with the Board’s directives. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination with an appropriate physician to determine the current severity of his service-connected degenerative joint disease and tarsal tunnel syndrome of the bilateral feet and ankles. The claims file should be made available to the examiner, including a copy of this Remand, and review should be noted. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail. The examiner should specifically address the following: (a.) Range of motion of the ankles expressed in degrees for active motion, passive motion, weight-bearing, and non-weight-bearing. (b.) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination due to any bilateral foot and ankle disability. Additional limitation of motion following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should be noted. Any loss of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. (c.) Describe any additional limitation of motion during flareups. The examiner should offer an opinion as to whether there are additional limits on functional ability during flareups. If the examiner cannot estimate the degrees of additional range of motion loss during flareups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). In setting out neurological findings, if applicable, the examiner should identify, and comment on the frequency or extent of all neurological symptoms associated with the service-connected bilateral foot and ankle disabilities. All neurological manifestations should be described in detail and the specific nerve affected should be specified, with the degree of paralysis caused by the service-connected disabilities stated. Additionally, following a review of the record, and with consideration of the medical evidence and lay statements of record, including the Veteran’s October 2013 hearing testimony, the examiner is asked to provide a retrospective medical opinion regarding the severity of the Veteran’s left foot and ankle disability from February 2, 2013 to April 14, 2014. The examiner should comment on whether range of motion measurements for passive motion, active motion, weight-bearing, and/or non-weight-bearing can be estimated. Additionally, the examiner is asked to state whether functional loss during flareups, after repetitive use, and repeated use over time caused additional range of motion loss and, if so, the examiner must specifically opine on the degree of additional range of motion loss. In doing so, the examiner is asked to estimate functional loss based on the Veteran’s descriptions of his additional loss of function and information gleaned from his medical records. The examiner is also asked to provide an opinion on where painful motion began, if possible. If the examiner is unable to provide a retrospective opinion, he or she should clearly explain so in the report. (Continued on the next page)   The examiner should set forth the complete rationale for all conclusions reached. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, Associate 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.