Citation Nr: 20056949 Decision Date: 08/28/20 Archive Date: 08/28/20 DOCKET NO. 18-23 197A DATE: August 28, 2020 REMANDED 1. Entitlement to a rating in excess of 20 percent for a right ankle disability is remanded. 2. Entitlement to a rating in excess of 10 percent for a left hand disability is remanded. 3. Entitlement to a rating in excess of 10 percent for a right hand disability is remanded. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) prior to August 1, 2016 is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from June 1971 to June 1995. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision (that denied the increased rating claim) and a November 2016 rating decision (that addressed a claim for TDIU filed in August 2016, and determined the matter was moot from the August 1, 2016 effective date of a 100 percent schedular rating and that prior to the receipt of the August 1, 2016 claim for TDIU unemployability due to service-connected disability was not shown. 1. 2. 3. Entitlement to a rating in excess of 20 percent for a right ankle disability, a rating in excess of 10 percent for a left hand disability, and a rating in excess of 10 percent for a right hand disability. The Board finds that further development of the record is necessary for proper adjudication of these claims. Initially, the Board notes that records pertaining to the Veteran’s treatment during the evaluation period for consideration herein for the disabilities for which he seeks increased ratings appear to be outstanding (not all available have been secured). In that regard, the record suggests that throughout the period he was apparently receiving ongoing private treatment for the disabilities; records of his private treatment in the claims file reflect significant periods of time for which not treatment records are included. As all records of treatment he received for the service-connected disabilities are pertinent evidence in determining the ratings warranted (as they would reflect worsening, and when it occurred, any such records that are outstanding must be sought). Furthermore, the most recent VA examination to assess the Veteran’s right ankle disability was in September 2016 (notably, the examiner did not review the Veteran’s claims file). And the most recent VA examination to assess the Veteran’s hands examination took place in February 2018 (when the Veteran’s claims file was reviewed). In March 2020 a private provider opined that the disabilities have been worsening and would continue to do so. Considering the allegation of worsening, and the duration of interval since the last examinations were conducted, a contemporaneous examination to assess the disabilities is necessary. 4. Entitlement to a TDIU rating is remanded. Initially, the Board notes that there is no indication that the Veteran is in receipt of Social Security disability. Notably, on his July 2016 VA Form 21-8940 the Veteran responded that he was receiving and did not expect to receive disability retirement or workers compensation benefits. Accordingly, development an attempt to obtain SSA disability records is not necessary. The instant claim for TDIU was received August 1, 2016; and the period for consideration in an increased rating claim encompasses a one year period prior to the filing of the claim. The AOJ determined that unemployability due to service-connected disability was not shown during such period. Alternatively, there is for consideration in this matter whether the matter of entitlement to a TDIU rating was raised (in the context of the pending appeals seeking increased ratings) by evidence of record prior to August 1, 2016. [In that regard, the Board observes that a statement submitted in 2019 was not of record prior to August 1, 2016. However, if the evidence of record during the evaluation period and prior to August 1, 2020 (or constructively of record, e.g., VA treatment records) included, for example, a medical provider’s opinion that Veteran was unemployable due to service connected disability, and it could be established that he in fact was then unemployable, TDIU could be established in the context of the increased rating claims. Accordingly, the claim for TDIU is inextricably intertwined with the Veteran’s increased rating claims, and consideration of the appeal in that matter must be deferred pending development of those claims. The matters are REMANDED for the following: 1. Ask the Veteran to identify all providers (VA and private) of evaluations and treatment he has received for his service-connected (1) right ankle, (2) left hand, and (3) right hand disabilities (records of which are not already in his claims file) since the filing of his instant claim seeking ratings for the disabilities in 2011, and to submit authorizations for VA to obtain complete pertinent clinical records from all private providers identified. Secure all such records from all providers identified (specifically including any VA evaluation or treatment records he identifies that are not already in the record). 2. Then arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected (1) right ankle, (2) left hand, and (3) right hand disabilities. The Veteran’s record must be reviewed by the examiner. All necessary studies must be completed, and must include range-of-motion studies in weight-bearing and non-weight-bearing (with notation of any additional functional limitations due to such factors such as weakness, pain, incoordination, flare-ups and fatigue). All pertinent findings including related functional limitations and impact on employment must be described in detail. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, Associate 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.