Citation Nr: 21039695 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-21 178 DATE: July 1, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected right ankle sprain is remanded. REASONS FOR REMAND The Veteran had active service from October 2007 to October 2012. This matter comes before the Board of Veterans' Appeals (Board) from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a June 2019 Travel Board hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Veteran was notified that the VLJ who conducted his hearing is no longer with the Board. He was also asked if he wished to have another Board hearing. In correspondence dated in May 2021, he notified that the Board that he does not wish to have another Board hearing for this appeal. In September 2019, the Board remanded this issue for additional development. Specifically, a new VA examination was requested because the December 2014 examination was deemed inadequate for rating purposes. While another VA examination was conducted in December 2019, the Board finds that, for reasons indicated herein, it is also inadequate for rating purposes. The Veteran has a right to substantial compliance with directives of a Board decision, and therefore the Board must unfortunately remand this issue again to ensure this compliance. Dyment v. West, 13 Vet. App. 141, 14647 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, in a June 2021 Written Brief Presentation, the Veteran's representative argues that a remand is necessary because the December 2019 VA examination is inadequate for reasons pertaining to range of motion measurements. The representative states that the December 2019 examiner did not elicit relevant information from the Veteran with regard to concerns she may have had about estimating range of motion measurements for repetitive use over time, instead of simply noting that she could not determine those measurements without resorting to speculation. Also at the December 2019 VA examination, the examiner indicated that the Veteran was not examined during flare-ups or immediately after repetitive use over time. She concluded that the examination was neither medically consistent nor inconsistent with the Veteran's description of the functional loss with repetitive use over time. She also was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. The examiner's explanation was that the examination and review of the Veteran's records gave her no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare-up. As previously stated, the Veteran, through his representative, explained that the examiner did not obtain sufficient information from him during the course of the examination, to estimate range of motion after repetitive use or during a flare-up. The Veteran's representative argues that the Veteran continues to have "episodic sharp pain (which also speaks to being a flare-up), unexpected rolling of the right ankle mainly with prolonged standing, prolonged walking, and walking on uneven terrain." See June 2021 Written Brief Presentation. The Court of Appeals for Veterans Claims has held that, "before the Board can accept an examiner's statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the 'medical community at large' and not the insufficient knowledge of the specific examiner." See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Here, the December 2019 examiner did not distinguish whether her conclusion was based on a lack of knowledge among the medical community at large or was specific to just her knowledge base. Thus, before this claim can be decided on its merits, a new VA examination is necessary to address these deficiencies. Accordingly, the matter is REMANDED for the following: 1. Ask the Veteran to provide the names and addresses of all medical providers who have treated him for his right ankle disability. Any authorization necessary to obtain the identified records should be obtained from the Veteran. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified as such. 2. Then, schedule the Veteran for an appropriate VA examination with a different VA examiner to evaluate the current severity of his service-connected right ankle sprain. Elicit from the Veteran all signs and symptoms of the service-connected right ankle sprain. In doing so, obtain information from the Veteran (or treatment records) as to the frequency, duration, characteristics, severity, and/or functional loss with any repetitive use over time and during flare-ups. Also indicate the presence of any ankylosis of the right ankle. Full range of motion testing must be performed where possible. The right ankle should be tested in (1) active motion, (2) passive motion, (3) weight-bearing, and (4) in non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. If pain is found on examination, the examiner should note when the pain begins. In assessing functional loss, flare-ups and increased functional loss on repetitive use over time must be considered. In addition to current findings, to the extent possible, assess any additional functional loss, in degrees, during the Veteran's flare-ups and any increased functional loss, in degrees, on repetitive use over time. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. The examiner must provide a complete explanation and rationale for all opinions expressed. The examiner must also consider and address the Veteran's May 2016 private examination report associated with the claims file. If the examiner makes any determinations that contradict the May 2016 private examination, he or she must provide a complete explanation and rationale why the May 2016 private examination is incorrect or invalid. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). 3. After completing the above actions, readjudicate the issue of entitlement to an initial disability rating in excess of 10 percent for service-connected right ankle sprain. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA (CONTINUED ON NEXT PAGE) medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.