Citation Nr: 21039801 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-35 484 DATE: July 1, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for right ankle osteoarthritis with tendonitis and sprain is remanded. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain and degenerative disc disease is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to July 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2017 and July 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. This decision is being made under the "one-touch" program. A transcript of the hearing will be associated with the claims file at a later time. 1. Entitlement to an initial rating in excess of 10 percent for right ankle osteoarthritis with tendonitis and sprain is remanded. 2. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain and degenerative disc disease is remanded. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. This includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). During the June 2021 Board hearing, the Veteran testified that symptoms of his service-connected right ankle and lumbar spine disabilities have worsened since his last VA examinations in May and December 2017. Specifically, the Veteran stated that he has been experiencing incapacitating episodes due to back pain and was seen at the emergency room at the VA hospital every year since 2017; in particular, he had to take leave from work for five months in 2017. Regarding his ankle, he reported difficulty walking or experiencing severe pain on a daily basis. The Veteran is entitled to new VA examinations where there is evidence, including his statements, that his service-connected disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey, 6 Vet. App. at 381. Accordingly, a more contemporaneous VA examination is required to provide a current picture of the Veteran's service-connected lumbar spine disability at issue on appeal. 38 C.F.R. §§ 3.326, 3.327. Additionally, the Veteran indicated during the hearing that he last was seen for these conditions at the VA medical center in the beginning of this year. However, the most recent VA treatment records included in the claims file are dated January 2019. It is necessary to obtain these relevant medical records for inclusion in the evidence. Jolley v. Derwinski, 1 Vet. App. 37, 40 (1990); Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (indicating, at bare minimum, VA has constructive, if not actual, notice and possession of these additional records since they are VA generated and maintained, even if not physically in the file). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records for the Veteran and any associated outpatient clinics dated from January 2019 to the present. All records and/or responses received should be associated with the claims file. 2. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected right ankle disability. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected right ankle disability, and how he characterizes the additional functional loss during a flare. There should be a complete discussion of the Veteran's flare-ups, to include their severity, frequency, and duration; precipitating and alleviating factors; and an opinion as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. See Sharp v. Shulkin, 29 Vet. App. 32 (2017). Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that a flare up or repetitive use over time results in any of the following: a. marked limitation of ankle motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion); b. ankle ankylosis in plantar flexion, and if so, at what degree; c. subastragalar or tarsal joint ankylosis in poor weight-bearing position; or d. malunion of os calcis or astragalus, with marked deformity. 3. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected lumbar spine disability. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Comment whether there is disc herniation with compression and/or irritation of the adjacent nerve root. Also, provide the total duration of incapacitating episodes for each year since 2017. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected lumbar spine disability, and how he characterizes the additional functional loss during a flare. There should be a complete discussion of the Veteran's flare-ups, to include their severity, frequency, and duration; precipitating and alleviating factors; and an opinion as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. See Sharp v. Shulkin, 29 Vet. App. 32 (2017). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Readjudicate the Veteran's claims with consideration of all evidence in the claims file. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.