Citation Nr: 20021038 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 10-02 945 DATE: March 24, 2020 REMANDED Entitlement to an increased disability rating in excess of 10 percent for left ankle arthritis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1975 to January 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Following a February 2013 remand, the Board issued a decision in January 2014 denying, in relevant part, the increased rating issue on appeal. Thereafter, the Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2015 memorandum decision, the Court remanded the issue to the Board. In December 2015, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. The Board remanded both the increased rating and TDIU issues in April 2018. Regrettably, additional development is still necessary. Entitlement to an increased disability rating in excess of 10 percent for left ankle arthritis is remanded. In its April 2018 Remand, the Board stated that the Veteran should be afforded a new VA examination of the left ankle in order to determine its current severity. In so doing, the Board noted that, in compliance with Sharp v. Shulkin, the examiner should discuss flare-ups and any additional functional loss suffered during flare-ups and that the examiner could use information from the Veteran’s medical records or other sources available to the examiner to determine additional functional loss due to a flare-up. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Veteran was afforded a VA examination in July 2019, the examination report states that the Veteran’s medical records were reviewed and includes a finding that the Veteran did not report flare-ups. The examination report also, however, includes the Veteran’s report of pain all the time but also states that the Veteran “will try to exercise but causes pain as well and will perform limited motion” which indicates the presence of flare-ups. Moreover, the Board notes that a review of the Veteran’s treatment records demonstrates descriptions of flare-ups on multiple occasions. Where, as here, flare-ups appear to be consistently shown, the functional loss caused by such must, as far as is possible, be described by the VA examiner in order to determine the Veteran’s impairment. Thus, while the Board regrets further delay, a new VA examination is necessary. Entitlement to a total disability rating based on individual unemployability. is remanded. As the issue remanded above may have an impact on the Veteran’s claim for TDIU, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity service-connected left ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is also asked to comment on and describe the functional impairment caused by the Veteran’s left ankle disability as it pertains to the Veteran’s ability to function in an occupational environment. If possible, the examiner is asked to identify the date in which any change in degree of impairment first occurred. 2. Then readjudicate the claims, to include the TDIU claim, remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.