Citation Nr: 1805550 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-22 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of a fracture of the left distal fibula. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran had active military service in the U.S. Army from February 1969 to March 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction has been transferred to the RO in Columbia, South Carolina. In November 2017, the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the Veteran's claims file. At the hearing, the Veteran submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) review. 38 C.F.R. § 20.1304 (2017). Finally, during his November 2017 Board hearing, the Veteran stated that he stopped working due to his left distal fibula condition. Further, during the Veteran's March 2015 VA examination, the Veteran reported that he could no longer work due to his service-connected residuals of fracture of the left distal fibula. Thus, the Board finds that entitlement to a TDIU has been raised by the evidence of record and has re-characterized the issues on appeal to include entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is service-connected for residuals of a fracture of the left distal fibula, currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71(a), Diagnostic Code 5262. In a May 2012 rating decision, the RO explained that the evaluation of 10 percent for the Veteran's ankle condition was assigned based on painful motion of the ankle under 38 C.F.R. § 4.59. The Veteran was afforded VA examinations for his service-connected residuals of a fracture of the left distal fibula in February 2012, March 2013, and March 2015. However, the most recent VA examination reports are not responsive to the pertinent rating criteria for evaluating the service-connected residuals of a fracture of the left distal fibula. Notably, the March 2013 and March 2015 VA examination reports do not address whether there is nonunion of the tibia and fibula with loose motion requiring a brace or malunion of the tibia and fibula with moderate or marked knee or ankle disability. As such, to ensure the record reflects the current severity of the Veteran's service-connected residuals of a fracture of the left distal fibula, the Board finds that a contemporaneous examination, responsive to all pertinent rating criteria is needed. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); McClendon v. Nicholson, 20 Vet. App. 79 (2006). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Lewinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). Finally, as noted above in the Introduction, the issue of entitlement to a TDIU has been raised and is part of the Veteran's appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also finds that the TDIU issue is inextricably intertwined with the issue being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). However, the TDIU issue has not been addressed by the AOJ. On remand, the Veteran should be provided appropriate notice of what is required to substantiate a claim for TDIU, and invited to submit VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Complete any appropriate notice and assistance for the claim for TDIU. Request that the Veteran complete and submit VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. After the above development has been completed, schedule the Veteran for an appropriate VA examination to determine the nature and severity of his service-connected residuals of a fracture of the left distal fibula. The examiner is requested to review all pertinent records associated with eth claims file and to comment on the severity of the Veteran's service-connected left distal fibula. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the applicable criteria, 38 C.F.R. § 4.71(a), Diagnostic Codes 5262, 5270-5274. Specifically, the examiner must address whether there is nonunion of the fibula with loose motion requiring a brace, or malunion of the fibula with either slight, moderate, or marked knee or ankle disability under Diagnostic Code 5262. Under Diagnostic Code 5270, the VA examiner should address whether the Veteran has ankylosis of the ankle. If the Veteran does have ankylosis of the ankle, then the VA examiner should address the criteria listed for this code. Under Diagnostic Code 5271, the VA examiner should report whether the Veteran's limited motion of the ankle is marked or moderate. Under Diagnostic Code 5272, the VA examiner should address whether the Veteran has ankylosis of the subastragalar or tarsal joint. If so, address whether it is in poor weight-bearing position or in good weight-bearing position. Under Diagnostic Code 5273, the VA examiner should address whether the Veteran has malunion of os calcis or astragalus with marked deformity or moderate deformity. Under Diagnostic Code 5274, the VA examiner should address whether the Veteran had an astragalectomy. Also, the VA examination should include the results for the range of motion testing. The VA examination should 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 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must explain the rationale for all opinions given. If he or she is unable to provide any opinion sought, it must be so noted for the record, and the reason therefore explained. 4. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claim, to include the claim for a TDIU. If any of the issues remain denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).