Citation Nr: 18141253 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 14-43 834 DATE: October 10, 2018 REMANDED Entitlement to a rating in excess of 10 percent for lumbar strain prior to February 24, 2015 and in excess of 20 percent thereafter is remanded. Entitlement to a compensable rating for chronic left ankle sprain with instability prior to February 24, 2015 and in excess of 10 percent thereafter is remanded. Entitlement to a rating in excess of 10 percent for chronic right ankle pain with mild instability and Achilles tendinitis is remanded. Entitlement to a rating in excess of 10 percent for right L5 radiculopathy and extensor halluces longus weakness is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1988 to January 1991. In his December 2014 Substantive Appeal, the Veteran requested a Board hearing. The hearing was scheduled for February 9, 2015. In a February 9, 2015 Statement in Support of Claim, the Veteran agreed to undergo a VA examination in lieu of attending the scheduled Board hearing. The Veteran underwent VA examinations in March 2015. Therefore, there is no outstanding hearing request. 38 C.F.R. § 20.704(e). In an April 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for depression. Therefore, as the issue of entitlement to service connection for depression has been granted in full, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In his September 2018 Appellate Brief, the Veteran through his representative stated that the currently assigned evaluations do not accurately reflect the severity of the Veteran’s disabilities. The representative stated that the Veteran has complained of weakness, stiffness, lack of endurance, locking, fatigability, and pain associated with his service-connected disabilities. During his most recent VA examinations, the Veteran reported frequent flare-ups lasting for a significant amount of time; however, the examiner reported that the Veteran has full and pain-free range of motion with no other abnormalities that affected the function. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that all VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. It does not appear that joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, was conducted at any of the VA examinations. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board finds that the Veteran should be afforded VA examinations to determine the current severity of his lumbar strain and ankle disabilities and right L5 radiculopathy and extensor halluces longus. Snuffer v. Gober, 10 Vet. App. 400 (1997). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part and parcel of an increased rating claim when such claim is raised by the record. During a January 2015 psychology consult, the Veteran stated that due to his back and ankle pain, he has a sense of loss related to chronic pain, such as trouble currently working. Therefore, the issue is raised by the record and is properly before the Board. However, the Board finds that a remand is required prior to adjudication of the claim for a TDIU. The Veteran has not been provided adequate notice of the requirements to substantiate TDIU, nor has the Agency of Original Jurisdiction addressed TDIU in the first instance. The matters are REMANDED for the following action: 1. Obtain and associate all outstanding VA and private treatment records with the claims file. 2. Contact the Veteran and request that he identify all providers who have treated him for his lumbar strain, ankle conditions, and radiculopathy and extensor halluces longus. After obtaining authorization, obtain all outstanding, non-duplicative records. If the records are unavailable, document the claims file and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Issue a notice letter to the Veteran concerning the claim for TDIU. Ask him to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Upon receipt of the form, complete any additional development. 4. Thereafter, schedule VA examinations to determine the current severity of the Veteran’s lumbar strain, bilateral ankle conditions, and right L5 radiculopathy and extensor halluces longus. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner(s) in conjunction with the examinations. The examination reports must include a notation that this record review took place. All clinical findings should be reported in detail to include the functional impact on daily activities and employment. All indicated studies, including x-rays, range of motion (ROM) studies in degrees must be conducted, and all findings must be reported in detail. Additionally, all neurologic symptomatology associated with the back disability should be noted; including findings related to right L5 radiculopathy and extensor halluces longus weakness, and any indicated diagnostic tests should be accomplished. To the extent possible, the examiner is asked to opine as to the ROM and note any pain (and the point during ROM that pain is reported), pain on use, weakness, incoordination, or excess fatigability. In accordance with Correia v. McDonald, 28 Vet. App. 158 (2016), the ROM for the Veteran’s lumbar disability and bilateral ankles should be tested on active and passive motion, in weight-bearing and non-weight-bearing, and after repetitive use. The examiner should consider the Veteran’s lay statements regarding his decreased ROM. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should further assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional ROM loss. The examiner should consider all procurable and assembled data by obtaining all tests and records that might reasonably illuminate the medical analysis, to include the Veteran’s statements regarding the extent of functional loss during flare-ups. 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. The supporting rationale for all opinions expressed must be provided. 5. Then, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel