Citation Nr: 21026976 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-37 748 DATE: May 4, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for right ankle injury is remanded. REASONS FOR REMAND The Veteran honorably served on active duty in the United States Army from November 1975 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran filed a timely notice of disagreement (NOD). In April 2017, the RO issued a statement of the case (SOC). In July 2017, the Veteran perfected his appeal by filing a VA Form 9. The RO issued another rating decision denying the claim in July 2019, however the issue on appeal still remains the January 2017 rating decision. This matter came before the Board in April 2020, and the Board remanded the matter to the RO for further development. The RO issued a supplemental statement of the case in October 2020. This matter is now properly before the Board. 1. Entitlement to a disability rating in excess of 10 percent for right ankle injury. In December 2016, the Veteran reported flare ups. However, a range of motion and functional loss test was not conducted. The Board remanded the Veteran's claim and indicated that the examiner should specifically interview the Veteran about the nature of the flare-ups that he reported in the December 2016 VA examination. The Board further instructed that the examiner assess the impairment during flare-ups and provide a retroactive opinion as to any additional functional loss during flare-ups at that time and provide an estimate of that loss in terms of degrees reduction in range of motion. In August 2020, the Veteran was afforded a new VA examination and the Veteran's range of motion and functional loss were tested. However, the Board provided specific remand instructions in which the August 2020 VA examiner did not comply. The examiner failed to interview the Veteran about the nature of the flare-ups that he reported at his December 2016 VA examination and the impairment during flare-ups. The examiner did not provide a retroactive opinion as to any additional functional loss during flare ups as requested. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, the Board instructed the RO to have the August 2020 examiner provide information to demonstrate that they are qualified to offer the opinion by providing a curriculum vitae or other similar document. The Board requested the information be associated with the Veteran's claims file. The RO did not provide the requested information. Therefore, remand is necessary pursuant to Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the examiner who conducted the August 2020 VA examination, if available. If the August 2020 VA examiner is not available, obtain an addendum medical opinion from an appropriate clinician. If the examiner determines a physical examination is necessary to provide opinions, such should be scheduled. The examiner must address the following: a. Specifically interview the Veteran about the nature of the flare-ups that he reported in the December 2016 VA examination; assess this impairment during flare-ups, and provide a retroactive opinion as to any additional functional loss during flare-ups at that time, and provide an estimate of that loss in terms of degrees reduction in range of motion. (Continued on the next page) b. Provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). 2. A complete rationale must be provided for all opinions. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hellina Y. Hailu, 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.