Citation Nr: 21030641 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-31 030 DATE: May 19, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent prior to October 27, 2020, and in excess of 20 percent from October 27, 2020, for postoperative residuals of right ankle injury is remanded. Entitlement to an evaluation in excess of 20 percent prior to June 22, 2015, and in excess of 30 percent from August 1, 2016, for residuals of left thigh and knee injury with fracture of femur (now evaluated as total left knee replacement) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to August 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered in January 2014 and August 2015. In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge at the Agency of Original Jurisdiction (AOJ). A transcript of the hearing is included in the electronic claims file. In March 2020, the Board remanded these matters for additional development. In a November 2020 rating decision, the AOJ increased the Veteran's service-connected postoperative residuals of right ankle injury to 20 percent, effective October 27, 2020. The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved his claim. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an evaluation in excess of 10 percent prior to October 27, 2020, and in excess of 20 percent from October 27, 2020, for postoperative residuals of right ankle injury is remanded. 2. Entitlement to an evaluation in excess of 20 percent prior to June 22, 2015, and in excess of 30 percent from August 1, 2016, for residuals of left thigh and knee injury with fracture of femur (now evaluated as total left knee replacement) is remanded. Unfortunately, there has not been substantial compliance with the Board's previous March 2020 remand directives regarding these issues. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2020, the Board remanded these matters to obtain VA examinations to comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). However, the October 2020 VA knee and ankle examiners again just noted that there was evidence of left knee and right ankle pain with weight-bearing and during passive range of motion testing, but did not include actual range of motion findings for passive motion for the knee or ankle as was clearly requested. In addition, in the October 2020 VA knee and lower extremity DBQ, the examiner also specifically noted that there should be consideration for obtaining a VA Femur DBQ. The matters are REMANDED for the following actions: 1. Schedule the Veteran for knee, femur, and ankle examinations to ascertain the current severity of his residuals of left thigh and knee injury with fracture of femur (now evaluated as total left knee replacement) as well as his postoperative right ankle injury residuals. The examiner must test the Veteran's active motion (providing results in degrees), passive motion (providing results in degrees), and pain with weight-bearing and without weight-bearing of the left knee and the right ankle. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected left knee/thigh and right ankle disabilities alone and discuss the effect of the Veteran's left knee/thigh and right ankle disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). (Continued on the next page) 2. After completing the above actions and any other necessary development, the claims on appeal must be readjudicated, taking into consideration all relevant evidence associated with the record since the January 2021 SSOC. The RO should consider all applicable amendments to the Musculoskeletal Diagnostic Codes effective February 7, 2021. If any benefit on appeal remains denied, an SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.