Citation Nr: 22017269 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-37 717 DATE: March 24, 2022 REMANDED Entitlement to a rating in excess of 10 percent for ligamentous reconstruction of the left ankle with degenerative changes is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1976 to January 1980. In March 2022, the Veteran testified at a virtual hearing before the undersigned. 1. Entitlement to a rating in excess of 10 percent for ligamentous reconstruction of the left ankle with degenerative changes is remanded. The Veteran was most recently examined for her left ankle disability in May 2018. At that time, the examiner noted that the Veteran reported flare ups that caused functional impairment, but failed to describe the extent of functional impairment, including the limitation of motion, during a flare up. It does not appear that the examiner attempted to estimate additional functional loss during flare ups based on the treatment records or by asking the Veteran specific questions. Moreover, at her March 2022 Board hearing, the Veteran testified that her left ankle disability had worsened since her most recent examination. In light of this suggestion of possible worsening and the inadequate discussion of flare ups, a new VA examination is warranted to evaluate the current severity of her left ankle disability. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician determine the current severity of her service-connected left ankle disability to include any associated scar. The examination MUST be provided by clinicians OTHER THAN the December 2015 and May 2018 examiners. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (a.) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). (c.) The examiner should also specifically describe the level of functional loss due to pain on motion for the Veteran's left ankle disability, preferably in terms of range of motion. If they are unable to do so, they should explain why. (d.) The examiner should provide retrospective opinions of the December 2015 and May 2018 examinations and report the degree of functional loss due to flare ups and due to pain on motion, if possible, preferably in terms of range of motion. If unable to provide retrospective testing, they should state why and provide a reasoned explanation for the determination. (e.) Note that the Veteran has testified to constant swelling, constant pain, and use of a brace. Given such, the examiner should comment on the aforementioned. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moore, 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.