Citation Nr: 21030081
Decision Date: 05/17/21	Archive Date: 05/17/21

DOCKET NO. 12-14 873
DATE: May 17, 2021

REMANDED

Entitlement to a rating in excess of 10 percent prior to July 14, 2016, and a rating in excess of 20 percent as of July 14, 2016, for a right ankle disability, is remanded.

REASONS FOR REMAND

Entitlement to a rating in excess of 10 percent prior to July 14, 2016, and a rating in excess of 20 percent as of July 14, 2016, for a right ankle disability, is remanded.

In the October 2020 Remand, the Board requested that the Veteran be provided "a VA examination.  The Board requested that the Veteran be scheduled "for a VA examination by an orthopedist or a podiatrist determine the current severity of service-connected right ankle degenerative joint disease, status post fracture."  The Remand further requested that examiner "confirm that the examiner is an orthopedist or a podiatrist."  The Veteran was scheduled for the requested examination.  The resulting January 2021 examination report indicates that the ankle evaluation was conducted by a physician's assistant rather than a requested specialist.

Compliance with Board remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998).  Therefore, the requested actions were not completed and do not substantially comply with the October 2020 Board remand.  The Veteran's record should be referred to an orthopedist or a podiatrist to determine the current severity of service-connected right ankle degenerative joint disease.

The matters are REMANDED for the following action:

1.   After obtaining appropriate authorization, obtain any VA and private treatment records identified by the Veteran that are not already of record.

2.   Then, schedule the Veteran for a VA examination by an orthopedist or a podiatrist to determine the current severity of service-connected right ankle degenerative joint disease, status post fracture.  The examiner must review the claims file and should note that review in the report.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished.  The examiner should provide the following information:

(a.) Confirm that the examiner is an orthopedist or a podiatrist.

(b.) Test all ranges of motion of the right ankle, and note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or if there is weakened movement, excess motion, fatigability, painful motion, or incoordination attributable to the service-connected disability, expressed in terms of the degree of additional range of motion loss.  The examiner should identify the point in the range of motion when pain begins.

(c.) Test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for both ankles.  If any range of motion is found to be from 0 degrees to 0 degrees, clarify if that finding represents ankylosis.

(d.) Opine as to whether any pain associated with the right ankle disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups.  The examiner must attempt to ascertain adequate information concerning the functional effects of the ankle disability during flare-ups, such as information regarding frequency, duration, characteristics, severity, or functional loss.

 

 

Harvey P. Roberts

Veterans Law Judge

Board of Veterans' Appeals

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.