Citation Nr: 18157408 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 14-37 068 DATE: December 12, 2018 REMANDED Entitlement to an increased rating in excess of 10 percent for right fibula fracture and fracture evolution of the medial malleolus (right fibula disability) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1983 to March 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2011 and October 2013 rating decisions by the Department of Veterans Affairs (VA). In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Board notes that the Veteran attempted to execute a VA 21-22, Appointment of Veterans Service Organization as Claimant’s Representative for attorney Davila-Vargas, who also represented the Veteran at his November 2018 Board hearing. See November 2018 VA Form 21-22. However, it appears that Mr. Davila-Vargas is not accredited by VA. Thus, he has not been added to the record as the Veteran’s representative at the current time. 1. Entitlement to an increased rating in excess of 10 percent for a right fibula disability is remanded. The Veteran’s most recent VA examination for his right fibula disability occurred in August 2014. Since that time, he has indicated that his disability has worsened. See November 2018 Board hearing. Because it has been over four years since the last VA examination, remand for a contemporaneous examination is required to assess the current severity of his service-connected disability. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA examinations must include joint testing on both active and passive motion, and in weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA ankle examinations of record do not fully comport with the requirements of Correia or Sharp. See, e.g., August 2014 VA examination. Thus, remand is necessary for a new VA examination on this basis as well. The Veteran is currently being compensated pursuant to Diagnostic Code 5271, for limited motion of the ankle, but his service-connected disability is clearly related to his fibula, which can be compensated pursuant to Diagnostic Code 5262. See 38 C.F.R. § 4.71a. Therefore, on remand, an opinion should be provided as to whether the Veteran has nonunion or malunion of the fibula. The Veteran has several documents that need translating from Spanish. See March 2010, July 2013, and September 2013 correspondence from Dr. L. A. R.-R.; January 2011 correspondence from the Veteran. On remand, such documents should be translated. 2. Entitlement to TDIU is remanded. The matter of entitlement to TDIU is inextricably intertwined with the Veteran’s other remanded issue; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from July 2013 to April 2014 and August 2018 to the present. 2. The AOJ should obtain translations for the following documents: March 2010, July 2013, and September 2013 correspondence from Dr. L. A. R.-R.; January 2011 correspondence from the Veteran. 3. After the above development is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected fibula (and ankle) disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. In addition, the examiner is requested to respond to the following: Does the Veteran have malunion or nonunion of the right fibula? Please explain why. Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel