Citation Nr: 18155320 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 09-31 325 DATE: December 4, 2018 REMANDED Entitlement to a rating in excess of 20 percent for a right ankle disability, to include consideration of an extraschedular evaluation, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the U.S. Marine Corps from January 1973 to October 1975. These matters are before the Board of Veterans’ Appeals (Board) on appeal from March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts that denied an initial rating in excess of 20 percent for residuals of a broken right ankle with loss of motion and degenerative arthritis, and from an April 2009 rating decision of the RO that denied a total disability rating based on individual unemployability (TDIU). In August 2017, the Board in part denied an increased initial rating for the right ankle and for a TDIU. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In May 2018, the Court vacated this portion of the Board’s decision and remanded the portion for compliance with a Joint Motion for Partial Remand. In the Joint Motion for Partial Remand, the parties agreed that the Board erred by not considering whether referral for extraschedular rating consideration was warranted because the Veteran reported using support devices, ceased work because of his ankle, and was told that the disability was so severe that his function would be equal to that possible after an amputation with placement of a prosthesis. The parties also found that the Board’s reasons and bases for the denial of a TDIU were inadequate for the same reasons and additionally because the Board did not address the Veteran’s education and occupational history. Extraschedular referral of Appellant’s ankle disability pursuant to section 3.321 Entitlement to a total disability rating based on individual unemployability (TDIU) Extraschedular consideration is raised by the record. The matter is therefore REMANDED to the Agency of Original Jurisdiction (AOJ) for appropriate review and referral to the Director, Compensation and Pension Service pursuant to 38 C.F.R. § 3.321(b)(1) (2017). A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue was not addressed in the most recent Supplemental Statement of the Case in October 2016. Further, in July 2008 and November 2008 the Veteran submitted a formal claim for TDIU. Finally, since the October 2016 SSOC, VA obtained additional pertinent evidence including a file of Social Security Administration records of examination and award of disability benefits and a November 2018 VA examination with no waiver of consideration by the agency of original jurisdiction. 38 C.F.R. § 20.1304 (2018). Therefore, a remand is necessary to consider this evidence in the first instance. The matters are REMANDED for the following action: 1. Obtain all outstanding VA outpatient records. 2. Request the Veteran, through his counsel, submit any further medical or non-medical evidence to support his claim of an increased rating, on a schedular or extraschedular basis. 3. After review of the new evidence, consider whether any additional VA examinations are necessary, and if so, obtain those examinations and opinions to include an opinion regarding whether the Veteran’s service-connected right ankle disability has affected his ability to work by assessing his occupational impairment. Specifically, the examiner is asked to comment as to the limitations imposed by each of the Veteran’s service-connected ankle disability on his ability to obtain and retain all forms of substantially gainful employment. The reviewer must scrutinize all evidence of record, including but not limited to the following: During the January 2016 VA examination, it was noted that the functional impact of the Veteran’s right ankle condition would adversely affect his ability to perform occupations requiring prolonged or exertional weight bearing activities, kneeling, crouching, squatting, climbing, lifting, or carrying but would not interfere with sedentary occupational activity or light physical activity with reasonable accomodation. In a June 2018 affidavit, the Veteran reported that if he stands for more than a minute, he needs to lift his right foot up and put all the weight onto his left leg. He reported that he tries to keep his right foot elevated and that his ankle locks up at least once a day which causes him to become immobile. The Veteran also reported having a wheelchair to assist with mobility as needed. In a September 2018 Vocational Assessment, the Veteran reported difficulty standing more than 5-10 minutes at a time with the use of an assistive device, difficulty walking more than a few feet with the use of a cane, difficulty walking more than 25-30 yards with the use of a walker, and the need to have the ability to elevate his right leg above heart level at least 12 times per day for approximately 15 minutes each time. During the November 2018 VA examination, it was indicated that the functional impact of the Veteran’s right ankle condition would adversely affect his ability to perform occupations tasks such as standing, walking, lifting, sitting, etc., because activities involving weight bearing and right ankle range of motion causes pain and decrease range of motion affects ambulation and use of lower extremity. (Continued on the next page)   4. After completion of the above, the claim should be reviewed considering any new evidence. If the claim is not granted, the Veteran should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. NeSmith, Associate Counsel