Citation Nr: 20039925 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 15-17 710 DATE: June 11, 2020 REMANDED The issue of entitlement to a disability rating in excess of 10 percent for ununited fracture of the styloid of the left fibula is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the St. Paul, Minnesota RO. A transcript of the hearing is associated with the claims file. In February 2019, the Board denied entitlement to a rating in excess of 10 percent for ununited fracture of the styloid of the left fibula. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a November 2019 Joint Motion for Remand (JMR), vacated the February 2019 Board decision and remanded the issue to the Board for readjudication. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for a TDIU has not been raised. 1. Entitlement to an increased rating for service-connected left leg disability is remanded. The parties to the November 2019 JMR agreed that the Board erred in its February 2019 decision by not ensuring that the Veteran was provided an examination that was adequate for adjudication purposes. Specifically, the parties to the JMR agreed that the VA examiners did not elicit information from the Veteran about any additional functional loss he may experience during flare-ups, even if the Veteran is not experiencing a flare-up during the examination. Additionally, the parties agreed that the VA examiners did not provide adequate findings as to range of motion loss due to pain and where the pain began. It was also agreed that the findings were not adequate as to testing for pain on active and passive motion and in a weight-bearing and nonweight-bearing mode pursuant to Correia v. McDonald, 28 Vet.App. 158, 169-170 (2016) and 38 C.F.R. § 4.59. There is no indication that either examination tested for pain on active and passive motion. The parties therefore agreed that a remand was warranted so that the Board could ensure that the Veteran was provided a VA examination that elicited adequate information. The Board finds, that pursuant to the November 2019 JMR, the issue of entitlement to an increased rating for the Veteran’s service-connected left leg disability must be remanded to provide him with an adequate VA examination. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected fracture, ununited, styloid, left fibula. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran’s service-connected left leg disability. The examiner must address the following: (a.) The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing mode for the left leg. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran’s left leg, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether an increased rating for the Veteran’s service-connected fracture, ununited, styloid, left fibula, may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine 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.