Citation Nr: 1647458 Decision Date: 12/21/16 Archive Date: 12/30/16 DOCKET NO. 12-33 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increase in a 20 percent rating for a right ankle disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). 3. Entitlement to an initial rating higher than 20 percent rating for a low back disability. 4. Entitlement to an initial rating higher than 20 percent for a right shoulder disability. 5. Entitlement to an initial rating higher than 10 percent for a left knee disability based on instability. 6. Entitlement to an initial rating higher than 10 percent for a left knee disability based on limitation of flexion. 7. Entitlement to an initial higher (compensable) rating for a left knee disability based on limitation of extension. REPRESENTATION Appellant represented by: James G. Fausone, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Army from March 1969 to March 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that increased the rating for the Veteran's service-connected right ankle disability (right ankle strain with painful os peroneum syndrome and minimal tibiotalar degenerative disease) from noncompensable to 20 percent, effective August 28, 2009. In July 2016, the Veteran appeared at a Board videoconference hearing before the undersigned Acting Veterans Law Judge. The Board notes that in an August 2016 rating decision, the RO denied a claim for a TDIU. Although that rating action was not appealed, the Board notes that the Court has held that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Board finds that a TDIU rating is part of the claim for an increased rating on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was last afforded a VA orthopedic examination, as to his service-connected right ankle disability, in October 2009. The diagnosis was right ankle strain with painful os peroneum syndrome and minimal tibiotalar degenerative disease. Since that time, at a July 2016 Board hearing, the Veteran specifically testified that his right ankle disability had worsened. Additionally, in a September 2016 statement, the Veteran's attorney requested that the Veteran be scheduled for a current VA examination in light of the Veteran's statements that his right ankle disability had worsened. Additionally, the Veteran has received treatment for his service-connected right ankle disability subsequent to the October 2009 VA audiological examination (noted above). For example, a September 2012 report form Adrian Orthopedics, PC, indicates that the Veteran was seen for follow-up for right lateral ankle pain. The examiner reported that dorsiflexion of the Veteran's right ankle was from 0 to 20 degrees and that plantar flexion was from 0 to 32 degrees. The diagnosis was a bony impingement of the lateral ankle secondary to a previously healed fracture of the right foot. A September 2014 treatment report from R. Giovannone, D.O., includes a notation that the Veteran had been diagnosed with ankylosis of the right ankle. Dr. Giovannone did not specifically report range of motion of the Veteran's right ankle, but appeared to indicate that pain began at 0 degrees with dorsiflexion and plantar flexion. The Board observes that the Veteran has not been afforded a VA examination, as to his service-connected right ankle disability, in over seven years. Additionally, the record clearly raises a question as to the current severity of his service-connected right ankle disability. As such, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo a contemporaneous VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Prior to the examination, any outstanding VA records should be obtained and added to the record. Additionally, as the Veteran's claim for a TDIU is inextricably intertwined with his claim for an increased rating for his service-connected right ankle disability, those matters must be addressed together on remand. Harris v. Derwinski, 1 Vet. App. 180 (1991). Finally, the Board observes that a May 2015 RO decision granted service connection and a 20 percent rating for a low back disability (lumbar spine strain); granted service connection and a 20 percent rating for a right shoulder disability (right shoulder rotator cuff tear and acromioclavicular joint arthritis); granted service connection and a 10 percent rating for a left knee disability based on instability (left knee anterior cruciate ligament tear and degenerative changes with instability; granted service connection and a 10 percent rating for a left knee disability based on limitation of extension (left knee anterior cruciate ligament tear and degenerative changes with painful and limited flexion); and granted service connection and a noncompensable rating for a left knee disability based on limitation of extension (left knee anterior cruciate ligament tear and degenerative changes with painful and limited extension). In May 2016, the Veteran expressed disagreement with that decision. The Board observes that the RO has not issued a statement of the case as to the issues of entitlement to an initial rating higher than 20 percent for a low back disability; entitlement to an initial rating higher than 20 percent for a right shoulder disability; entitlement to an initial rating higher than 10 percent for a left knee disability based on instability; entitlement to an initial rating higher than 10 percent for a left knee disability based on limitation of flexion; and entitlement to an initial higher (compensable) rating for a left knee disability based on limitation of extension. Under the circumstances, the Board finds it necessary to remand these issues to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify all medical providers who have treated him for right ankle problems since November 2012. After receiving this information and any necessary releases, obtain copies of the related medical records (to specifically include treatment reports from the Ann Arbor, Michigan VA Medical Center) which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed, of the nature, extent, and severity of his service-connected right ankle disability and the impact of that condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the extent and severity of his service-connected right ankle disability. The entire claims file, including any electronic files, must be reviewed by the examiner. All indicated tests must be conducted, including x-ray, and all symptoms associated with the Veteran's service-connected right ankle disability must be reported in detail. The examiner must conduct a thorough orthopedic examination of the Veteran's right ankle and provide diagnoses of any pathology found. In examining the right ankle, full range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of the opposite undamaged joints. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is the case. The examiner must also indicate whether there is any guarding of the right ankle on motion and the degrees at which the guarding starts. The examiner must be asked to indicate whether pain or weakness significantly limits functional ability during flare-ups or when the right ankle is used repeatedly over a period of time. The examiner must also be asked to determine whether the joints exhibit weakened movement, excess fatigability or incoordination; if feasible, these determinations must be expressed in terms of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. If it is not feasible to express any functional impairment caused by pain, weakened movement, excess fatigability or incoordination, found in terms of additional range-of motion loss, the examiner must so state. The examination report must include a complete rationale for all opinions expressed. 4. Issue the Veteran a statement of the case as to the issues of entitlement to an initial rating higher than 20 percent for a low back disability; entitlement to an initial rating higher than 20 percent for a right shoulder disability; entitlement to an initial rating higher than 10 percent for a left knee disability based on instability; entitlement to an initial rating higher than 10 percent for a left knee disability based on limitation of flexion; and entitlement to an initial higher (compensable) rating for a left knee disability based on limitation of extension, to include notification of the need to timely file a substantive appeal to perfect his appeal on these issues. 5. Finally, readjudicate the issues on appeal. If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran 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 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).