Citation Nr: 21028368 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-01 481 DATE: May 11, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for left ankle sprain based on limitation of motion is remanded. Entitlement to a separate compensable disability rating for left ankle sprain based on instability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1982 to July 1986. These matters come to the Board of Veterans' Appeals (Board) from a July 2015 rating decision which, in pertinent part, granted service connection for left ankle sprain, evaluated at 10 percent under Diagnostic Code 5271 based on limitation of motion, effective December 3, 2014. In October 2018, the Board remanded the matter for the issuance of a supplemental statement of the case (SSOC). 1. Entitlement to an initial disability rating in excess of 10 percent for left ankle sprain based on limitation of motion is remanded. 2. Entitlement to a separate compensable disability rating for left ankle sprain based on instability is remanded. The Veteran contends that an increased rating is warranted for his left ankle sprain. The Veteran's left ankle sprain is currently rated at 10 percent under Diagnostic Code 5271, based on limitation of motion. VA treatment records dated in October 2015 reflect that the Veteran reports chronic left ankle sprain with pain and that his left ankle often rolls. In January 2016, he was prescribed a stabilization brace and custom orthotics for his left ankle. A February 2017 VA physical therapy referral shows the Veteran was measured for and instructed on the use of a cane after reporting instability of his ankle and several falls. A May 2019 VA examination report shows that left ankle instability was suspected but stability testing was normal upon examination. However, a June 2019 VA examination report shows that anterior drawer and talar tilt testing were positive for laxity. Thus, the evidence of record raises the issue of whether a separate compensable rating is warranted for left ankle instability. Left ankle instability may be rated analogous to knee instability under Diagnostic Code 5257, which provides for a 10 percent evaluation for slight lateral instability, a 20 percent evaluation for moderate lateral instability, and a 30 percent evaluation for severe lateral instability. 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). Diagnostic Code 5257 now provides for a 10 percent evaluation for strain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; a 20 percent evaluation for (1) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (2) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation; and a 30 percent evaluation for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Because the record does not contain sufficient evidence to rate the Veteran's ankle instability under the new rating criteria, a new examination is warranted. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records from September 2019 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ankle sprain, including any associated instability and whether there are incomplete or complete ligament tears requiring a brace and/or assistive device. 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 examination obtained upon remand should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under both the old and new criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). 3. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.