Citation Nr: 22011102 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 17-48 935 DATE: February 25, 2022 REMANDED Entitlement to a disability rating in excess of 10 percent for left ankle chondromalacia with arthritis of the left tibiotalar joint is remanded. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for left ankle chondromalacia with arthritis of the left tibiotalar joint is remanded. The Veteran had active service from April 1985 to May 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied entitlement to a disability rating in excess of 10 percent for left ankle chondromalacia with arthritis of the left tibiotalar joint. The Board notes that while the Veteran initiated an appeal as to several issues addressed by the July 2015 rating decision, the Veteran's Form 9 reflects perfection only of the appeal relating to the left ankle claim. The Veteran filed his claim in March 2015. He was afforded a VA examination in relation to his left ankle in July 2015. At his September 2021 Board hearing the Veteran testified that his left ankle symptoms have worsened during the pendency of his appeal, and since the time of the last VA examination in July 2015. 09/28/2021, Hearing Transcript, pp. 4, 5. The Veteran has asserted that the service-connected left ankle disability has worsened since the most recent VA examination in July 2015. The fact that a VA examination is more than 6 years old is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). However, in this case, the Veteran and his attorney have asserted that his left ankle disability has worsened after the most recent VA examination; therefore, a new VA examination is needed to assist in determining the current severity of the Veteran's service-connected left ankle disability. Snuffer, 10 Vet. App. at 400. Further, the Board notes that the July 2015 VA examination is inadequate for adjudication purposes. The Veteran's left ankle is rated under Diagnostic Code 5271 on the basis of limitation of motion, 38 C.F.R. § 4.71a. In the context of examinations evaluating functional loss in the musculoskeletal system under diagnostic codes based upon limitation of motion, when pain is associated with movement, to be adequate for rating purposes an examination must address whether pain could significantly limit functional ability during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Accordingly, to be adequate, a VA examination of the joints should reflect an attempt to express the degree of additional functional ability during flare-ups in terms of range of motion estimates. In July 2015 the VA examiner recorded the Veteran's report of flare ups of his left ankle several times per week. The examiner documented the Veteran's report of loss of function due to pain. However, the examiner declined to opine as to the extent to which the Veteran's left ankle function was further impaired during flare ups, stating that it would be speculative to do so as the examination was not being conducted during a flare up. In this regard, the Court of Appeals for Veterans Claims (CAVC) has held that mere lack of occasion to observe the joint during a flare-up or after prolonged use is an insufficient basis for finding it speculative to respond. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). In light of the foregoing, the Veteran should be afforded a VA examination, consistent with applicable law, that evaluates the severity of the Veteran's left ankle disability both currently and throughout the period on appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his left ankle disability. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should be requested to review the claims file and provide an addendum report that: (a.) estimates the Veteran's functional loss in terms of additional loss of range of motion, if any, due to reported flare-ups and repeat use over time as required by 38 C.F.R. §§ 4.40, 4.45, as interpreted by CAVC in Sharp. Inform the examiner that the Sharp decision contemplated the absence of ideal clinical or laboratory conditions under which empirical observation might be made. Instead, all that is required is that an examiner consider the claimant's lay reports, the evidence of record, and the findings on examination and then make an estimate (even if speculative to an extent). The examiner is also free to state their level of confidence in the estimate given, on a scale of 1 to 5, with 5 being the most confident and 1 being the least; and (b.) addresses range of motion during both active and passive motion and weight bearing and non-weight-bearing. Should the examiner maintain that they cannot provide the estimate of additional loss of range of motion during flare-ups or after repetitive use over time, then they must state whether it is due to the absence of the necessary training and experience in the medical community at large, or their personal lack of training and experience. If the former, a full explanation must be provided. If the latter, then the RO shall refer the claims file to an examiner with the requisite training and experience. The examiner should also opine as to whether their Sharp and Correia compliant test results can be applied retrospectively. If the new Sharp and Correia compliant test results can be applied retrospectively, the examiner should specify how far back. If possible, the examiner should opine as to the Veteran's left ankle range of motion for the period from March 2014 onward. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.