Citation Nr: 18160070 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 10-41 432 DATE: December 21, 2018 REMANDED Entitlement to a rating in excess of 20 percent for osseous changes at fracture site with pain, residuals tibiofibular fracture to include knee and ankle conditions, right, is remanded. Entitlement to service connection for a left leg disability, as secondary to the residuals of the right tibia, fibular fracture, is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1990 from August 1900 and from August 1990 to July 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision. In July 2018, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. In his July 2018 hearing, the Veteran testified that his right ankle/knee disability and symptoms have increased in severity, to include multiple occasions of his ankle giving out and causing him to fall. The last VA examination regarding the Veteran’s right ankle was in December 2017, prior to his July 2018 testimony. Therefore, a more contemporaneous examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). Additionally, the Veteran has claimed that he has developed a left leg disability as secondary to his service connected right leg disabilities. A prior June 2009 VA examination stated that the Veteran’s left leg injury was not secondary to his right ankle disabilities. The June 2009 examination opinion, however, did not address whether the Veteran’s left leg injury and any resulting disability was aggravated by his service connected right ankle/knee disability. Pursuant to 38 C.F.R. § 3.310, a disability which is proximately due to or the result of a service-connected disease shall be service connected, to include based on aggravation. See also Allen v. Brown, 7 Vet. App. 439 (1995). Thus, the Board finds the June 2009 VA examination inadequate for adjudication purposes. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet. App. 1 (2001). In regard to the Veteran’s claim for a TDIU, the Board finds that the Veteran’s claim for TDIU is inextricably intertwined with his claims for an increased rating and service connection on appeal. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Associate with the record any VA clinical documentation not already of record pertaining to treatment of the Veteran. 2. Thereafter, schedule the Veteran for a VA examination, by a physician (M.D.), to determine the nature and severity of his service-connected right ankle and knee disabilities and the nature and etiology of any diagnosed left leg disability. The claims file must be made available to the examiner for review in connection with the examination, and it should be confirmed that such records were available for review. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail. The examination report must include a complete rationale for all opinions expressed. (a.) In regard to the Veteran’s right ankle and knee, the examiner should: (i.) conduct range of motion testing of the Veteran’s right ankle and knee. The VA examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the VA 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. (ii.) render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or in coordination associated with the right ankle and knee. If pain on motion is observed, the VA examiner should indicate the point at which pain begins. In addition, the VA examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his right ankle and knee due to pain or any of the other symptoms during flare-ups or with repeated use. To the extent possible, the VA examiner should express any additional functional loss in terms of additional degrees of limited motion. (iii.) state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of the right ankle and/or knee after repeated use over time. (iv.) provide an opinion, based on the Veteran’s lay statements including his July 2018 hearing testimony and the other evidence of record, estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (v.) The Veteran’s lay statements regarding his symptomology, specifically his July 2018 hearing testimony and that of his wife, in which he endorsed symptoms of swelling, edema, and multiple occasions of his right ankle/knee/leg giving out must be recorded and considered. (vi.) The examiner is asked to specifically indicate whether the Veteran has an impairment of the tibia and fibula, and, if so, if it is nonunion, with loose motion; or malunion with marked, moderate, or slight knee or ankle disability. (vii.) The examiner should also comment on the functional impact any right ankle and/or knee disability has on the Veteran’s daily life and employability. A rationale for all opinions offered should be provided. (b.) In regard to the Veteran’s left leg, the examiner should: (i.) Identify any diagnosed left leg disability; (ii.) If there is a diagnosis of a left leg disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such identified disability was caused or aggravated (worsened beyond its natural progression) by the Veteran’s service connected right ankle and knee disabilities. (iii.) The examiner must provide a complete rationale on which his/her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. (iv.) Record and consider the Veteran’s lay assertions as to onset and continuity and symptomatology, specifically including his July 2018 hearing testimony and that of his wife, regarding injury and onset of symptomology of the left leg. (v.) comment on the functional impact any left leg disability has on the Veteran’s daily life and employability. A rationale for all opinions offered should be provided. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. 3. After ensuring compliance with the development requested above, readjudicate the claims, including the Veteran’s entitlement to a TDIU. The AOJ should specifically determine if separate compensable ratings are warranted for any additional identified disabilities of the Veteran’s right ankle and/or knee. 4. If after adjudication of the Veteran’s increased rating and service connection claims, he does not meet the statutory provisions for entitlement to a TDIU, the AOJ should refer the matter of entitlement to a TDIU rating on an extraschedular basis to the VA Director of Compensation and Pension for a determination on the matter. In connection with the referral, the AOJ should include a full statement outlining the Veteran’s service-connected disabilities, employment history, educational attainment and all other factors bearing on the issue. 5. Thereafter, if any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel