Citation Nr: 21028301 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-28 472A DATE: May 10, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left ankle sprain is remanded. Entitlement to service connection for right ankle disability, to include on a secondary basis to service-connected left ankle sprain, is remanded. Entitlement to service connection for left knee disability, to include on a secondary basis to service-connected left ankle sprain, is remanded. Entitlement to service connection for right knee disability, to include on a secondary basis to service-connected left ankle sprain, is remanded. Entitlement to service connection for low back disability with degenerative disc disease of the lumbar spine, to include on a secondary basis to service-connected left ankle sprain, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1990 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Agency of Original Jurisdiction (AOJ). In November 2017, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in February 2018 where it was remanded for additional evidentiary development. 1. Entitlement to a rating in excess of 10 percent for left ankle sprain. In compliance with the Board's February 2018 remand, the Veteran was afforded a VA contract examination. While the record shows a September 2020 VA contract examination, the examiner did not properly obtain the requested information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran. To that end, the Board notes that the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) emphasized additional requirements that must be met for examinations to be adequate. The Court stated that examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from a veteran, including during flare-ups. The examiner should estimate a veteran's functional loss due to flare-ups based on all the evidence of record, including the lay information, or sufficiently explain why the examiner cannot do so. Furthermore, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's left ankle disability is currently rated under Diagnostic Code 5271 which now provides a range for ankle limitation of motion. Because the record does not contain sufficient evidence to rate the Veteran's left disability under the new rating criteria, a new examination is warranted. In addition, if possible, a retrospective opinion regarding the Veteran's ranges of motion in active motion, passive motion, pain with weight-bearing and without weight bearing; severity, frequency, and duration of any flare-ups; and the degree of functional loss during flare-ups at each time the Veteran was examined during this appeal with range of motion testing for rating purposes would be beneficial. Accordingly, the Board concludes that a reexamination is necessary which addresses matters in compliance with current case law. 2. Entitlement to service connection for right ankle disability. 3. Entitlement to service connection for left knee disability. 4. Entitlement to service connection for right knee disability. 5. Entitlement to service connection for low back disability. At his November 2017 hearing, the Veteran specifically raised a new theory of entitlement to service connection that his claimed right ankle, bilateral knees, and low back disabilities are secondary to service-connected left ankle sprain. See Hearing Transcript at 17. In compliance with the Board's February 2018 remand, the Veteran was afforded VA contract examinations and opinion obtained in September 2020. However, development was only accomplished for direct service connection. The record shows that in a March 2021 written submission, the Veteran again asserted that secondary service connection was appropriate for his claimed conditions. See March 2021 Brief. Given the Veteran's contentions as expressly raised by the record, the Board concludes that remand is warranted for development on secondary service connection. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his left ankle disability. All required tests should be performed. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history and such review should be noted in the examination report. The examiner must consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). An explanation for all opinions expressed must be provided The examiner should evaluate the disability under the revised criteria for Diagnostic Code 5271 which provides ranges for limited motion of the ankle. See 38 C.F.R. § 4.71a were amended effective February 7, 2021. In addition, if possible, the examiner should provide a retrospective opinion addressing the above (ranges of motion in active motion, passive motion, pain with weight-bearing and without weight-bearing; severity, frequency, and duration of any flare-ups; and the degree of functional loss during flare-ups) at the time the left ankle disability was previously examined during this appeal with range of motion testing for rating purposes. The examiner should determine whether the Veteran experiences flare-ups and to the extent possible estimate any additional functional loss caused by the Veteran's flare-ups. If the examiner is unable to do so then before concluding that such an estimate cannot be made without resorting to mere speculation, the examiner should ascertain by alternative means, including the Veteran's testimony, the following information regarding his flare-ups: frequency, duration, characteristics, severity, or functional loss. Afterwards the examiner should explain why such an estimate cannot be made. 2. Obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran's claimed right ankle disability. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Is it at least as likely as not (50 percent or greater probability) that the Veteran's right ankle disability is caused by his service-connected left ankle sprain? Is it at least as likely as not (50 percent or greater probability) that the Veteran's right ankle disability is aggravated by his service-connected left ankle sprain? A complete rationale for all findings and conclusions is requested. 3. Obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran's claimed bilateral knee disability. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral knee disability is caused by his service-connected left ankle sprain? Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral knee disability is aggravated by his service-connected left ankle sprain? A complete rationale for all findings and conclusions is requested. 4. Obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran's claimed low back disability. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability is caused by his service-connected left ankle sprain? Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability is aggravated by his service-connected left ankle sprain? A complete rationale for all findings and conclusions is requested. 5. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable, the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. An, 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.