Citation Nr: 21025729 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-16 332 DATE: April 28, 2021 REMANDED Entitlement to a rating in excess of 20 percent for residuals of a fracture to the left tibia and fibula is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy on multiple periods of active service between September 1987 and January 2014. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Veteran contends that his left lower leg disability is worse than the rating currently assigned. Specifically, he asserted at his Board hearing that his left lower leg disability involves ankylosis. The Board notes that this matter was remanded in October 2018 for a VA examination to be conducted to determine the current level of severity for the left lower leg disability. The examiner was directed to comment on whether the Veteran had ankylosis of the left lower leg. A VA examination was conducted in December 2019. The Veteran reported painful motion and swelling with flareups and use of an ankle brace at least once a month. Range of motion (ROM) testing revealed dorsiflexion up to 0 degrees and plantar flexion up to 15 degrees. The examiner noted the ROM contributed to a functional loss, as the ROM “makes it harder to do some things.” Pain was not noted on examination. The Veteran was able to perform repetitive use testing, but no additional loss of function was found after three repetitions. The examiner reported that the Veteran was not examined immediately after repetitive use or during a flare up. However, the examiner found that the examination was neither medical consistent or inconsistent with the Veteran’s statements describing functional loss. In addition, the examiner noted that there was no evidence of pain, weakness, fatigability, or incoordination significantly limiting functional ability with repetitive use or flareups. Normal muscle strength was normal with no evidence of muscle atrophy. The examiner found no evidence of ankylosis. The examiner noted suspected ankle instability or dislocation. In addition, the examiner also noted occasional use of an ankle brace as an assistive device. Further, the examiner did not find that the functional impairment of the left lower leg was such that no effective function remained other than that which would be equally well served by amputation. Finally, the examiner noted that there was no evidence of pain on passive ROM or non-weight bearing. The examiner then stated that the type of problem that the Veteran has, bony synostosis, is difficult to evaluate for rating purposes. The examiner noted that the bone fracture was uncommon and, furthermore, a synostosis was not a common complication of this uncommon condition. A review of medical literature by the examiner found a study which noted a decrease in dorsiflexion by nearly 10 degrees in the affected ankle compared to the unaffected ankle due to the synostosis. The examiner then noted that there was some ex-rotation of the fibula when the ankle dorsiflexes, with the bony bridge between the tibia and fibular preventing the fibula from being able to rotate. Finally, the examiner noted that “this is a not-often-seen form of ankylosis” as the fused bone is not near the affected joint. A second VA examination was conducted in August 2020. The Veteran reported flareups causing pain and swelling in the left ankle that makes ambulating and prolonged difficulty standing. ROM testing revealed dorsiflexion up to 10 degrees and plantar flexion up to 45 degrees. The Veteran reported pain with dorsiflexion. The examiner also noted objective evidence of localized tenderness or pain on palpation (5/10) while standing. The Veteran was able to perform repetitive use testing, but no additional loss of function was found after three repetitions. The examiner reported that the Veteran was not examined immediately after repetitive use or during a flare up. However, the examiner found that the examination was neither medical consistent or inconsistent with the Veteran’s statements describing functional loss. The examiner found the same ROM results on repetitive use and during flare ups. The examiner also found decreased muscle strength on dorsiflexion and plantar flexion, but no evidence of muscle atrophy. No evidence of ankylosis or joint instability was found. The examiner noted the Veteran’s occasional use of a cane as an assistive device. Further, the examiner did not find that the functional impairment of the left lower leg was such that no effective functional remained other than that which would be equally well service by amputation. The examiner noted functional limitation from prolonged standing causing pain and swelling in the left ankle. Finally, the examiner noted objective evidence of pain on passive ROM and in non-weight bearing; however, no ROM measurements were recorded. Upon review, the Board finds that remand is required to afford the Veteran a new VA examination. The United States Court of Appeals for Veterans Claims (the Court) has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 states, as relevant, that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing.” The VA examinations did not comply with Correia and as such, remand is required so that the Veteran may be afforded a new VA examination that contains adequate information. Specifically, while range of motion test results were reported, there was no indication that such testing was conducted on both active and passive motion. Indeed, the examinations only identified one set of range of motion testing. Therefore, the examinations are adequate and the Board must remand this matter for a new VA examination that complies with Correia. Furthermore, the Board finds that the December 2019 VA medical opinion is factually inconsistent, as the examiner stated that the Veteran’s bony synostosis was a not-often-seen form on ankylosis, but then found that there was no evidence of ankylosis on examination. In addition, the August 2020 VA examiner did not address or consider the December 2019 medical opinion in finding that there was no evidence of ankylosis. Given the inconsistency in the examination reports, a clarifying medical opinion must also be obtained before this claim can be properly evaluated. The matter is REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Schedule the Veteran for a VA examination (or a telehealth interview if an in-person examination is not feasible) to determine the current severity of his service-connected left lower leg disability. The evidence of record must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All necessary testing should be conducted. In particular, the examination must include tests of all applicable ranges of motion in active motion, passive motion, weight-bearing, and non- weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, if the examination is not conducted during a flare-up, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss (due to pain, weakness, fatigability, or incoordination) regarding any flare-ups by alternative means. The examiner must provide an estimate of functional loss in terms of range of motion based on the Veteran’s statements, available medical records, and other relevant sources. The examiner is to comment on whether the Veteran has ankylosis of the left lower leg. The examiner must address and reconcile, to the extent possible, the examination report with the December 2019 and August 2020 VA examinations reports. (Continued on the next page)   In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.