Citation Nr: 18146374 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-02 374 DATE: October 31, 2018 REMANDED Entitlement to an initial rating in excess of 20 percent for service-connected arthritis of the left ankle, status-post fracture is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to a service-connected disability on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1965 to May 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which awarded service connection for status-post left ankle fracture and assigned an initial noncompensable (zero percent) evaluation. In an October 2012 rating decision, the RO increased the assigned initial rating for the service-connected arthritis of the left ankle status-post fracture to 20 percent from the date of service connection. The Veteran has not expressed satisfaction with the higher initial disability rating; this matter thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). In December 2012, the Veteran asserted entitlement to a TDIU based upon his service-connected left ankle disability. His claim was denied in a February 2013 rating decision and he disagreed with this denial in November 2013. Although the February 2014 statement of the case (SOC) did not address entitlement to a TDIU, the issue of entitlement to a TDIU has been raised during the pendency of the initial rating claim and will therefore be addressed herein. Rice v. Shinseki, 22 Vet. App. 447 (2009), (holding that a TDIU is part of an increased rating claim when raised by the record); see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996). 1. Entitlement to an initial rating in excess of 20 percent for service-connected arthritis of the left ankle, status-post fracture is remanded. As to the claim of entitlement to a higher initial rating for service-connected left ankle disability, the Veteran was most recently afforded a VA examination in January 2013 with an addendum opinion in December 2014. He contends that his service-connected left ankle disability is worse than was contemplated by the VA examiner. See the VA Form 9 dated December 2015. In light of the Veteran’s contentions, the Board finds that he should be afforded a new VA examination to obtain contemporaneous, pertinent information to assess the current nature and severity of his service-connected left ankle disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. 2. Entitlement to a TDIU due to a service-connected disability on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Veteran has asserted that he is unable to work due to his left ankle disability. In support of his contentions, he submitted a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) from his former employer, who reported that the Veteran stopped working for the construction company in December 2011 because he was unable to climb ladders, high buildings, or walk on rough construction sites due to his left ankle disability. The Veteran’s former employer noted that the Veteran relied upon a cane and brace for ambulation. See the VA Form 21-4192 dated December 2012. In addition, the January 2013 VA examiner explained that the Veteran stopped working because he was unsteady on ladders and roofs because of his left ankle disability. The examiner concluded that the Veteran “is not able to do construction or other heavy labor involving uneven surfaces or prolonged weight-bearing because of his ankle. He has limited education, and does not have skills which would allow him to secure and maintain gainful employment in a sedentary occupation.” The Veteran’s left ankle disability, rated at 20 percent disabling, is his only service-connected disability. Significantly, TDIU may be assigned to a veteran who fails to meet the percentage standards if he or she is unemployable by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16(b) (2017). As detailed above, the evidence of record contains evidence suggesting that the Veteran may be unemployable due to his service-connected left ankle disability. Therefore, as the Board is precluded from considering entitlement to an extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance, remand is necessary for referral to the Director of Compensation Service. The matter is REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The Veteran should be afforded a VA examination in order to determine the extent of his service-connected left ankle disability. Access to the Veteran’s electronic VA claims file must be made available to the examiner for review in connection with the examination. The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, and in weight bearing and nonweight-bearing, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner must also address at what point in the arc of motion pain limits function both regularly and during flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.   3. Refer to the Director of Compensation Service, the Veteran’s claim of entitlement to an extraschedular TDIU under 38 C.F.R. § 4.16(b). K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel