Citation Nr: 20047046 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 11-31 875 DATE: July 14, 2020 REMANDED Entitlement to higher evaluations for a right ankle disability, rated as 20 percent disabling prior to April 8, 2010, and 30 percent disabling since April 8, 2010, is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service with the United States Army from August 1962 to August 1982. In a May 2018 decision, the Board of Veterans’ Appeal (Board) denied the Veteran’s claims for increased ratings for a right ankle disability as well as his claim for a TDIU. The Veteran appealed the May 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent October 2019 memorandum decision, the Court vacated and remanded the May 2018 decision. Entitlement to higher evaluations for a right ankle disability, rated as 20 percent disabling prior to April 8, 2010, and 30 percent disabling since April 8, 2010, is remanded. As to the claim for higher evaluations for the right ankle disability, as noted in the October 2019 memorandum decision, VA treatment records cite to the following scanned records found in Vista which have not been associated with the claims file: June 30, 2009, scanned report; October 24, 2009, scanned surgery documents; January 11, 2010, scanned surgery documents; December 4, 2013, scanned report; September 28, 2014, scanned report; September 28, 2015, scanned report; and November 22, 2017, scanned report. Therefore, a Remand is required to obtain these outstanding medical records that are held by the Veterans' Administration (VA) as well as any other outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.). In this regard, it would be of great help to the Board if the Veteran and/or his representative could obtain these records and submit them to the VA (it would avoid delay). Given the above development, the Board also finds that a remand is required to provide him with a new VA examination to ascertain the severity of his right ankle disability. See 38 U.S.C. § 5103A(d); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA’s duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). When again examining the Veteran and thereafter adjudicating the claim, the AOJ should be mindful of the Court’s holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016) that VA musculoskeletal examinations must include range of motion testing in both active and passive motion, weight-bearing, and non-weight-bearing situations as well as opinions as to the Veteran’s range of motion during flare-ups. Additionally, given the concerns raised by the Court in the October 2019 memorandum decision, the AOJ, when again adjudicating the claim should consider if the Veteran is entitled to separate ratings for right ankle instability, leg shortening, and/or for post-operative scars. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); also see Forcier; supra; cf. McBurney, supra; Cf. Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim). Entitlement to a TDIU is remanded. As to the claim for a TDIU, as noted in the October 2019 memorandum decision, this issue is part of the Veteran’s claim for an increased rating for his right ankle disability under Rice v. Shinseki, 22 Vet. App. 447 (2009). However, while the Veteran meets the 38 C.F.R. § 4.16(a) schedule criteria for a TDIU, the Board finds that this issue is not ready for adjudication because the record does not contain needed information regarding his prior vocational history, work experience, his education, and the impact his service-connected disabilities have on him obtaining and maintaining substantial gainful employment. See 38 C.F.R. §§ 3.340, 4.16; Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a remand is required to obtain from the Veteran a fully-executed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to obtain this information. See 38 U.S.C.§ 5103A(b); 38 C.F.R. § 19.9. Again, if the Veteran and/or his representative could submit this as soon as possible, that would be of great help to the Board. The appeal is REMANDED for the following actions: 1. In order to comply with the October 2019 memorandum decision, associate with the record copies of ALL records the Veteran VA treatment records list as having been scanned into Vista including, but not limited to, the following treatment records: June 30, 2009, scanned report; October 24, 2009, scanned surgery documents; January 11, 2010, scanned surgery documents; December 4, 2013, scanned report; September 28, 2014, scanned report; September 28, 2015, scanned report; and November 22, 2017, scanned report. 2. Associate with the record any other outstanding VA treatment records. 3. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have, such as the above. This would greatly help the Board and help expedite the case. 4. Obtain and associate with the claims file a new and fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, whether he continues to be unemployed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevents him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. Any help from the Veteran and his representative in obtaining this information would be appreciated. The request should also notify the Veteran that his claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing the VA Form 21-8940. 5. In order to comply with the October 2019 memorandum decision, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his right ankle disability. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: (a) The examiner should identify all right ankle pathology found to be present during the pendency of the appeal. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the 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. (c) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) The examiner should also state whether the examination is taking place during a period of flare-up. (e) 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 symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited right ankle forward flexion and backward extension caused by functional loss during a flare-up and after repeated use over time. (f) If the examiner cannot estimate the degrees of additional range of motion loss in right ankle forward flexion and backward extension during flare-ups and/or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (g) The examiner should also state the nature, extent, and severity of any right ankle instability. (h) The examiner should also state the nature, extent, and severity of any right leg shortening. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. (Continued on the next page)   If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. In order to comply with the October 2019 memorandum decision, the AOJ when again adjudicating the claim should consider if the Veteran is entitled to separate ratings for right ankle instability, leg shortening, and/or for post-operative scars. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994); also see Forcier; supra; cf. McBurney, supra; Cf. Chisem, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.