Citation Nr: 1802494 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-26 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for residuals of a left ankle sprain. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to October 1973 and from April 1977 to December 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). During the course of the appeal, the Veteran was afforded VA examinations in October 2009, April 2011, and April 2016 in connection with his claim for an increased rating for his left ankle disability. However, the United States Court of Appeals for Veterans Claims (Court) made a precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). In this regard, it does not appear that Correia-compliant testing was conducted, or that the VA examiners explained why such testing could not be conducted or was not necessary, at the aforementioned VA examinations. Therefore, a remand is necessary in order to afford the Veteran a new VA examination that addresses such inquiries, and includes a retrospective medical opinion as to the findings included in the prior examinations conducted during the appeal period. With respect to the Veteran's claim for entitlement to a TDIU, the Board finds that such claim is inextricably intertwined with the increased rating claim remanded herein, the outcome of which could possibly have a bearing on whether the Veteran meets the schedular criteria for TDIU benefits during the entirety of the appeal. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the Veteran's TDIU claim must be deferred. Furthermore, on remand, the Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the information and evidence necessary to substantiate a TDIU claim. Additionally, while the Veteran did not respond to the April 2017 request, he should again be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate a 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. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected left ankle disability. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's left ankle disability. (B) The examiner should record the range of motion of the left ankle observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 so. (C) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran's left ankle disability conducted in October 2009, April 2011, and April 2016. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his left ankle, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner should state whether the Veteran suffers from moderate or marked limitation of ankle motion, and any malunion. The examiner should also indicate whether the Veteran has any ankylosis of the left ankle and, if so, at what degree the ankle is ankylosed. (G) The examiner should also discuss the functional impairment resulting from the Veteran's left ankle disability, including the impact on his daily activities and employability. A rationale for all opinions offered should be provided. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims for an increased rating for the residuals of a left ankle sprain and entitlement to a TDIU should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case. An appropriate period of time should be allowed for a response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. _________________________________________________ C. CRAWFORD 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) (2017).