Citation Nr: 1318388 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 08-23 090A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a left ankle disability for the period of July 31, 2007 through April 3, 2008. 2. Entitlement to a rating in excess of 10 percent for a left ankle disability for the period of May 1, 2009 through February 10, 2010. 3. Entitlement to a rating in excess of 20 percent for a left ankle disability status-post total ankle replacement for the period of November 1, 2011 through April 19, 2012. 4. Entitlement to a rating in excess of 20 percent for a left ankle disability for the period beginning August 1, 2012. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served active duty from June 1980 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2008, VA assigned a temporary 100 percent rating effective April 4, 2008, based on convalescence following ankle surgery; through rating decisions in June 2008, September 2008, and March 2009, that temporary rating was extended through April 30, 2009. Through the March 2009 rating decision, a 10 percent rating was assigned for the Veteran's left ankle effective May 1, 2009. In a February 2010 rating decision, VA granted a temporary 100 percent evaluation effective February 11, 2010, based on convalescence following another ankle surgery. Following additional surgeries, including a total ankle replacement, the temporary rating was extended until October 31, 2010. Beginning November 1, 2011, pursuant to a September 2010 rating decision, the Veteran's ankle disability was assigned a 20 percent rating. Finally, in a January 2013 rating decision, the Veteran was assigned a temporary 100 percent rating for convalescence following the Veteran's fifth ankle surgery, for the period from April 20, 2012 through July 31, 2012. The Veteran's pre-surgery 20 percent rating for the ankle was continued effective August 1, 2012. Per that rating decision, the RO also granted service connection for left lower extremity neuropathy as secondary to the service-connected left ankle disability, and assigned a noncompensable rating, based on apparent failure to attend a VA examination. There has been no disagreement with that action. The Board notes that in a December 2011 rating decision, the RO granted service connection for post-surgical scars of the left ankle, and assigned a noncompensable rating. The Veteran has not disagreed with the rating assigned, and this issue will not be considered by the Board at this time. There is no issue developed concerning the periods of assignment of the temporary total ratings that have been assigned. If appellant seeks to extend any of the periods, he should raise the claim specifically at the RO. Simultaneously with this decision, the Board is remanding a separate matter, docket number 12-02 453A, to the RO in Philadelphia, Pennsylvania. That appeal addresses issues relevant to the current rate at which the Veteran receives VA benefits. Specifically, the remanded appeal concerns the issues of (a) whether the Veteran was a "fugitive felon" under 38 U.S.C.A. § 5313B for the period from July 31, 2007 to July 13, 2011, and if not, whether he is entitled to restoration of benefits for that period; and (b) entitlement to a waiver of recovery of an overpayment of VA compensation in the amount of $87,265, related to a finding of "fugitive felon" status for the period from July 31, 2007 to July 13, 2011. The appeal of those issues has also been granted advanced-on-the-docket status. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of (a) entitlement to a rating in excess of 20 percent for a left ankle disability for the period beginning August 1, 2012; and (b) entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period of July 31, 2007 through April 3, 2008, the Veteran's left ankle disability was manifested by pain and marked limitation of motion, ultimately necessitating ankle arthrodesis. 2. For the period of May 1, 2009 through February 10, 2010, the Veteran's left ankle disability was manifested by pain and marked limitation of motion, and the failure of prior ankle arthrodesis. 3. For the period of November 1, 2011 through April 19, 2012, the Veteran's left ankle disability was manifested by chronic painful residuals of the implantation of an ankle prosthesis, including severe painful motion and weakness of the ankle, and the ultimate failure of an implanted ankle prosthesis. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, the criteria for an initial rating of 20 percent, but no more, for a left ankle disability for the period of July 31, 2007 through April 3, 2008, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2012). 2. With resolution of reasonable doubt in the appellant's favor, the criteria for an initial rating of 20 percent, but no more, for a left ankle disability for the period of May 1, 2009 through February 10, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5271. 3. With resolution of reasonable doubt in the appellant's favor, the criteria for an initial rating of 40 percent, but no more, for a left ankle disability status-post total ankle replacement for the period of November 1, 2011 through April 19, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5056, 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007). Therefore, no further notice is needed under VCAA. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished in relation to the issues being adjudicated herein. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and examination. The Veteran's statements in support of the claim are of record, including testimony provided at a May 2012 Travel Board hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his increased rating claim and the Veteran, through his testimony and her representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Disability Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, as in this case, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, however, will be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). In making all determinations, the Board must fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). July 31, 2007 through April 3, 2008 For the period on appeal prior to the Veteran's initial surgery, the Veteran's ankle disability is properly rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, based on the limitation of motion of the ankle. Under that diagnostic code, "moderate" limitation of motion is rated as 10 percent disabling, while "marked" limitation of motion is provided a 20 percent rating. The Board observes that in addition to the rating criteria available under Diagnostic Code 5271, he could in theory be rated under Diagnostic Code 5270, on the basis of ankylosis of the ankle. That diagnostic criteria provides for a 20 percent rating for ankylosis in plantar flexion less than 30 degrees, a 30 percent rating for ankylosis in plantar flexion between 30 degrees and 40 degrees or for ankylosis in dorsiflexion between 0 and 10 degrees, and a 40 percent rating for ankylosis in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees, or with an abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. VA provided the Veteran with an examination in November 2007. The Veteran described a history of problems following his in-service fracture of his left ankle, and that the disability caused him difficulty in his employment, driving a truck. He indicated that he was unable to stand for more than a few minutes, and that his ankle was painful, unstable, and stiff. Also, the ankle would give way underneath him. He had daily, moderate flare-ups which would last hours at a time. Physical examination showed dorsiflexion of 0 to 15 degrees, and plantar flexion to 45 degrees. His gait was normal, and although there was pain, there was no objective evidence of ankle instability or tendon abnormality. X-rays showed a "significant deformity of the calcaneus," and degenerative changes. The examiner described the severity of the disability as "mild." In November 2007, the Veteran's ankle disability was evaluated to determine whether surgery was necessary. The Veteran subsequently did have ankle surgery. At the time of the April 2008 ankle fusion, the examiner noted that the Veteran had degenerative arthritis of the subtalar and hindfoot, with an equinus deformity of the hindfoot. The examiner described the Veteran's condition as a "many-year history of progressive and painful deformity in the left hindfoot," and noted that the subtalar joint was "severe[ly]" deformed. At that time, the examiner performed a triple arthrodesis, as well as a lengthening of the left gastrocnemius tendon. The Veteran testified at his May 2012 hearing that prior to receiving VA treatment, he would occasionally fall due to instability in his ankle. Prior to his surgery, the Veteran claimed he essentially had no movement in his ankle. The Board finds that a 20 percent rating is warranted for the period prior to the Veteran's first ankle surgery. Although there is some evidence to suggest that the disability was only "mild," it is apparent that the disability is more appropriately rated as "marked" in nature. Weighing against the 20 percent rating, and in favor of the currently-assigned 10 percent rating, is the November 2007 examiner's opinion that the disability was "mild." Despite that conclusion, which the Board acknowledges derived from a full physical examination, the Board finds that the weight of the evidence favors a higher rating. Initially, that same examiner also noted a "significant deformity" of the calcaneus. More persuasively, the Veteran was evaluated for surgery at that time, and in fact shortly thereafter required a fusion of the ankle joint, based on a "severe" subtalar deformity. There is nothing in the record to suggest that the disability suddenly worsened in the time between the November 2007 examination and his April 2008 surgery. Under the rating criteria, the 20 percent rating is applicable for "marked" limitation of motion. As the Veteran testified at his hearing, prior to the surgery his Achilles tendon was so tight that he had no movement of the ankle. Considering the fact that the disability was sufficiently severe in nature to warrant surgery, the Board finds that the 20 percent rating for marked limitation of motion is most appropriate. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5271. There is nothing to suggest a rating under Diagnostic Code 5270 would be appropriate, as even if the Veteran could not move his ankle, there is no evidence that it was "ankylosed" in a position that would warrant a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Thus a rating over 20 percent is not indicated. May 1, 2009 through February 10, 2010 There is limited evidence for the period between May 1, 2009 through February 10, 2010, and no evidence of the level of ankylosis, if any. Notably, in April 2009, the Veteran indicated that he was still under post-operative care for his surgically-repaired left ankle, and that he had not been "cleared" by the VA podiatry team that was assisting in his recovery. A treatment note from April 29, 2010 (immediately prior to the period of time under consideration in this section) noted that the Veteran still needed muscle strengthening and Achilles tendon stretching two to three times per week, for between eight and twelve weeks. A treatment note from that same date indicated that the Veteran was status-post left triple arthrodesis with external fixation and tendoAchilles lengthening. The Veteran described mild pain in his left foot, but that he was able to "get away from using" his ankle brace. Physical examination showed that the surgical incision sites were completely healed, and that there was no erythema, no drainage, no purulence, and no infection. There was mild pain on range of motion, as well on palpitation of the lateral left foot along the subtalar joint. He had decreased muscle strength. The podiatrist who examined him noted that he could continue with normal activities as tolerated. A May 2009 note described the fusion resulting from the February 2008 surgery to be stable. In short, there is a lack of significant evidence of the condition of the ankle. There is no evidence concerning ankylosis, other than the fact that the fusion was, at least for a time, stable. The notations concerning the fusion of the ankle do not suggest that it was fused at an angle that would warrant a compensable rating under Diagnostic Code 5270, What is evident is that the Veteran's April 2008 surgery was a ultimately failure. The Veteran ultimately required a second fusion attempt in February 2010, shortly before the installation of a prosthetic ankle later that year. Considering the lack of evidence for the period from May 1, 2009 through February 10, 2010, the Board finds that a 20 percent rating under Diagnostic Code 5271, as applied above to the period of July 31, 2007 through April 3, 2008, continues to be appropriate. Although the Veteran's disability may have improved somewhat towards the end of his convalescence period following surgery, it is evident that the improvement did not last. Regardless of any improvement during this time, throughout the period under consideration the left ankle disability was status-post arthrodesis, which suggests significantly limited motion. Without evidence as to exactly when the ankle disability worsened again to the point of necessitating surgery, the Board cannot reasonably apply the lower, 10 percent rating, as the Veteran is entitled to the higher rating under such circumstances. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5271; see also Gilbert, 1 Vet. App. at 53. Again, there is a reasonable basis to assign the 20 percent rating, but nothing suggests that there is impairment that would warrant a rating in excess of that amount. November 1, 2011 through April 19, 2012 In a two-part surgical procedure, performed in May and August 2010, the Veteran's left ankle was replaced with a prosthesis. Following the Veteran's total ankle replacement, his ankle may be properly considered under Diagnostic Code 5056, which applies to the degree of disability related to the use of prosthetic implants. This diagnostic code provides an initial 100 percent rating for one year after the period of convalescence following the implantation of the prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5056. The Veteran received a 100 percent rating under this criteria, in conjunction with the allowance for a total rating due to convalescence under 38 C.F.R. § 4.30 (2012), from the time of his ankle replacement through the end of October 2010. Thereafter, chronic residuals consisting of severe painful motion or weakness are rated at 40 percent disabling. Id. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5270 or 5271, with a minimum rating to be applied of 20 percent. Id. The ratings provided by Diagnostic Code 5056 are based on similar criteria to those of Diagnostic Codes 5270 or 5271, and thus separate ratings under those different diagnostic codes would not be appropriate. 38 C.F.R. § 4.16 (2012). An October 2011 treatment note, from shortly before the period of time under consideration, indicated that the Veteran was not experiencing improvement in his ankle. He continued to use a brace and need crutches. There was pain on palpitation to the dorsal and plantar aspect of his forefoot, and there was decreased dorsiflexion, though without pain. The surgical incision site was well healed, but there was mild edema in the left lower extremity. He was diagnosed with "chronic left ankle pain." A December 2011 treatment note indicated that the Veteran's ankle pain was uncontrolled with Tramadol. A January 2012 note indicated examination findings essentially identical to those of the October 2011 treatment. Notably, however, X-rays showed a possible loosening of the implant tibial tray. The lateral malleolus appeared well fused, with hardware intact and good alignment. In February 2012, the Veteran continued to experience pain, and his objective symptoms were "relatively unchanged" since his previous visit. He was using a brace and crutches, and had decreased ankle range of motion. In April 2012, the Veteran required additional surgery, to remove the prosthetic ankle. Prior to his surgery, he had constant pain and swelling. As of that time, a podiatrist had diagnosed the Veteran with a failed left total ankle implant. The Board finds that the evidence supports a 40 percent rating under Diagnostic Code 5056. The Veteran's post-surgical residuals of the total ankle replacement were clearly chronic, in that they never resolved, and ultimately required further surgery to remove the prosthesis. The Veteran experienced constant pain and reduced range of motion. His ankle was weak, and required a brace and crutches for walking. As such, he met the criteria for a 40 percent rating for the period from November 1, 2011 through April 19, 2012. 38 C.F.R. § 4.71a, Diagnostic Code 5056. There is, however, no basis for assigning a higher rating during this time. Extraschedular Considerations The Board has also considered whether the Veteran's ankle presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's ankle disability that would warrant extraschedular consideration. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology. As described above, for the first two time periods under consideration, the evidence showed symptoms not fully meeting the "marked" criteria under Diagnostic Code 5271, but the Board has granted the Veteran the higher rating. The 40 percent criteria, applied for the period for November 1, 2011 until the time of his fifth surgery, encompassed all of the symptoms the Veteran displayed, including chronic pain and weakness. There is no evidence to suggest that the Veteran's left ankle disability (or its residuals which are also service-connected, Mittleider v. West, 11 Vet. App. 181, 182 (1998)) at any time caused symptoms not considered by the available schedular ratings. There is no suggestion that, other than during the periods of time in which the Veteran has previously been granted temporary total ratings, the Veteran has required periods of hospitalization. The Veteran has indicated that the disability has prevented him from working, but this factor is addressed with the remanded issue of entitlement to a TDIU. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. ORDER Entitlement to an initial 20 percent rating, and no higher, for a left ankle disability for the period of July 31, 2007 through April 3, 2008, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial 20 percent rating, and no higher, for a left ankle disability for the period of May 1, 2009 through February 10, 2010, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial 40 percent rating, and no higher, for a left ankle disability for the period of November 1, 2011 through April 19, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The remaining issues on appeal must be remanded for further development, to specifically include an examination and the retrieval of any current treatment records. Presently, the last treatment records on file were from 2012. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Concerning the issue of entitlement to an initial rating in excess of 20 percent for a left ankle disability for the period beginning August 1, 2012, the Board finds that there is insufficient evidence of record to rate the Veteran's claim. He has not been provided an examination following his most recent surgery, which included the removal of a prosthetic ankle. The Board notes in this regard that the April 2012 surgery report indicated that the removal of the ankle prosthesis could result in a shorter left lower extremity. The record currently does not include enough evidence to determine exactly how much the left lower extremity was shortened during the surgery. Therefore, a new examination to assess the current status of his left ankle disability is warranted. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). The examination should address all current symptomatology, and the ensuing report should be adequate such that the RO can consider a separate rating based on the shortening of the lower extremity, under 38 C.F.R. § 4.71a, Diagnostic Code 5275 (2012). To the extent that the Veteran's claim's for an increased rating for his left ankle was rated on the evidence of record due to the fact that he failed to appear for a scheduled VA examination, the Board cannot make such a determination based on the record before it. Presently, other than the RO's statement that the Veteran failed to appear for an examination, there is no evidence before the Board that the RO actually provided the Veteran with proper notice of any examination. There is also no evidence before the Board to indicate that any presumption of regularity should be applied in this instance. See Khyn v. Shinseki, ___F.3d ___, No. 2012-7003, 2013 WL 1846562 (Fed. Cir. May 3, 2013). Finally, the Veteran has raised the issue of entitlement to a TDIU. In accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), a Veteran's claim for an increased disability rating may require a determination as to whether he is entitled to a total disability rating based on individual unemployability. Entitlement to individual unemployability is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The evidence indicates that the Veteran has not worked since prior to his original claim in 2007. When he did work, he was a truck driver, but due to his left ankle, he became unable to use a clutch, and had to quit. Thus, the evidence indicates that the Veteran may be unemployable. Presently, for the periods on appeal during which the Veteran has not been granted a temporary total rating, the Veteran does not meet the criteria necessary for a TDIU under 38 C.F.R. § 4.16(a). This may be affected if the Veteran is granted a higher disability rating based on the other issues being remanded, and as such, the issue of entitlement to a TDIU is inextricably intertwined with his claims for increased ratings. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). The rating boards are required to submit to the Director of Compensation and Pension Service, for extraschedular consideration, all cases of Veterans who are unemployable by reason of service-connected disabilities, but who failed to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board is precluded by regulation from assigning a TDIU on an extraschedular basis in the first instance and must refer this matter to the RO for adjudication, including the possible referral to the Director of the Compensation and Pension Service for such consideration. See 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Obtain any outstanding VA treatment records, and associate them with the claims file or Virtual VA. If the Veteran indicates he has received private treatment for his disability, request that he submit an appropriate release, and make not less than two attempts to obtain any identified records. 3. After all available treatment records are obtained, afford the Veteran a VA orthopedic examination to determine the severity of his left ankle disability for the period beginning August 2, 2012. The examiner is to be provided access to the claims folder and Virtual VA. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. In accordance with the latest worksheets for rating ankle disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability. This review should include the extent to which the Veteran's left lower extremity was shortened as a result of his April 2012 ankle surgery to remove his ankle prosthesis. The examiner should also indicate to what extent, if any, the left ankle disability affects the Veteran's employability. A complete rationale for any opinions expressed must be provided. 4. The Veteran is hereby notified that it is his responsibility to report for the examination(s) and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report(s) to ensure that they are adequate. If any report is inadequate in any manner, take immediate corrective action. 6. Based on the evidence of record, determine whether referral to the Director of Compensation and Pension is warranted under 38 C.F.R. § 4.16(b) for consideration of entitlement to a TDIU on an extraschedular basis. If so, follow the appropriate referral procedures. 7. Then readjudicate the claims on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs