Citation Nr: 21001341 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-42 135 DATE: January 7, 2021 REMANDED 1. An increased rating in excess of 10 percent for a service-connected right ankle strain with spur and subtalar joint fusion is remanded. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1986 to June 1991. This matter originally came before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This matter has previously been remanded by the Board for further development, most recently in July 2020. This matter is again before the Board and has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). The Board notes that the issue of a TDIU has been raised during the appeal period. See March 2017 VA 21-8940. As such, the issue is considered part and parcel of the Veteran’s pending claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. An increased rating in excess of 10 percent for a service-connected right ankle strain with spur and subtalar joint fusion is remanded. The Veteran believes that an increased rating is warranted for his service-connected right ankle disability. See April 2015 NOD. The Veteran underwent a right ankle examination in November 2020. See November 2020 C&P Exam. Among other things, the examination found that the Veteran never had shin splints or achilles tendonitis, and that the Veteran did not have ankylosis. The Board finds the November 2020 right ankle examination inadequate, among other reasons, because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, among other evidence, the examination did not consider/was unable to consider a medical record from 2015 showing that the Veteran had shin splints, medical records from 2019 showing an assessment of right achilles tendonitis, a medical record from 2015 showing that the Veteran had right ankle ankylosis, and the Veteran’s report that he was unable to go up onto his toes due to the right ankle disability. See June 2020 CAPRI; March 2015 C&P Exam; September 2019 C&P Exam. Additionally, the examination appears to be internally inconsistent by finding that the Veteran’s right ankle is more painful when climbing stairs, changing directions, carrying more than the Veteran’s body weight, getting into a car, and sitting longer than 15 minutes, while also finding that the disability had no impact on the Veteran’s ability to perform any type of occupational task, such as standing, walking, lifting, and sitting. Finally, the examination did not consider the ameliorative effects of medication when evaluating the current nature and severity of the Veteran’s right ankle disability.  See Jones v. Shinseki, 26 Vet. App. 56 (2012) (when a Diagnostic Code is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication).  For these reasons, among others, a remand is needed for a new examination. The Board notes that it previously found right ankle examinations in March 2015 and September 2019 inadequate. See July 2020 BVA Decision. Therefore, the new examination should address the Veteran’s right ankle disability throughout the entire appeal period. 2. Entitlement to a TDIU is remanded. The Veteran believes that a TDIU is warranted. See March 2017 VA 21-8940. The Board finds that the TDIU issue is inextricably intertwined with the right ankle issue being remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994). As favorable action on the remanded right ankle claim could potentially result in the award of and an earlier effective date for a TDIU, the TDIU issue is deferred until the requested development has been completed. Id. Additionally, the most recent employment documentation provided by the Veteran years ago stated that the Veteran had not worked since 2017 and that the Veteran had not attempted to get a job since that time. See June 2017 VA 21-8940. However, medical records since that time show the Veteran’s report that since an examination in 2017, the Veteran had been fired from several positions and had most recently worked in August 2019. See November 2020 C&P Exam. A remand will allow the Veteran to provide updated information on his employment history as well as other relevant information. The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to November 2020. 2. Provide the Veteran with a new VA Form 21-8940 with instructions that updated information should be provided in order to assist with the adjudication of the TDIU claim. Complete any additional development indicated by the information on the returned form. 3. Ask the Veteran to provide IRS tax returns for the years he claims he has been unable to obtain and maintain substantially gainful employment due to service-connected disabilities (from 2013 to the present) and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 4. Schedule the Veteran for one or more appropriate VA examinations to determine the nature and severity of the service-connected right ankle disability throughout the entire appeal period (i.e. since September 2013). This should include, but is not limited to, any muscle injuries and any neurological impairments of the right ankle. The claims file and a copy of this Remand should be made available to and reviewed by the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected right ankle disability throughout the entire appeal period (i.e. since September 2013). This should include, but is not limited to, any muscle injuries and any neurological impairments of the right ankle. The severity of any muscle injuries (i.e. slight, moderate, moderately severe, or severe) and the severity of any neurological impairments (i.e. mild, moderate, severe incomplete paralysis, or complete paralysis of the affected nerves) should be assessed. Identify the specific muscle groups associated with any muscle injuries and identify the specific nerves associated with any neurological impairments. The examiner should also provide range of motion measurements in degrees. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, non-weight-bearing, and if possible, the range of motion of the opposite undamaged joint. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins. 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 in the report. The examiner must comment on the functional limitations caused by repetitive use over time and flare-ups due to the Veteran’s right ankle disability. The examiner must indicate whether, and to what extent, the Veteran’s range of motion is additionally limited after repetitive use over time and during flare-ups in terms of degrees, if possible. If it is not possible, the examiner should explain why, making clear that all procurable and assembled data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to repetitive use over time and flare-ups elicited from the Veteran) was considered, and that the medical community at large could not provide such an opinion without resorting to speculation. If it is not possible due to a deficiency in the record or a lack of personal medical knowledge, the examiner should state so. Any additional impairment on use or in connection with repetitive use over time and flare-ups should be described in terms of the degree of additional range of motion loss. If the Veteran states that the limitation on range of motion is variable, provide the range of variableness in terms of degrees. The examiner should specifically describe the severity, frequency, and duration of impairment after repetitive use over time and during flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such repetitive use over time and flare-ups affect functional impairment. This testing should be done regardless of whether the Veteran is tested after repetitive use over time or during a flare-up or not. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner should also provide estimates of what the Veteran’s range of motion measurements would have been without the ameliorative effects of medication. The examiner should specifically discuss the evidence of record which stated that the Veteran had right ankle ankylosis. In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) Reasons why previous examinations were found inadequate. See July 2020 BVA Decision; November 2018 BVA Decision. (2) The Veteran’s 2020 report that the right ankle pain was constant and dull. It was rated a six out of ten. Pain worsened when climbing stairs, changing directions, carrying more than his body weight, getting into cars, and sitting longer than fifteen minutes. Tylenol helped some. See November 2020 C&P Exam. (3) Medical records from 2019 showing a tender right posterior calcaneus over the achilles distally. The assessment was right achilles tendonitis. The Veteran took ibuprofen and had a walking boot. See June 2020 CAPRI. (4) The Veteran’s 2019 report that the right ankle disability had worsened throughout the appeal period. There was constant, annoying anterior and posterior pain with activity and movement dependent episodes of stinging anterior and posterior pain as well as right heel pain. There were activity dependent episodes of generalized swelling. The Veteran used ibuprofen and ice to treat it. The Veteran was unable to go onto his toes due to the right ankle disability. An examination stated that ankle instability or dislocation was suspected. See September 2019 C&P Exam. (5) The Veteran’s 2015 report that flare-ups impacted ankle function. His ankle tightened up when he walked for more than an hour and it pinched and locked up when he raised his toes, like when going upstairs. The Veteran had major problems. The Veteran also reported that the front of his shin hurt when standing up; that there was stiffness, loss of motion, pinching, and swelling; and that there was tenderness in the heel area always. An examination stated that the Veteran had functional loss. There was less movement than normal; weakened movement; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. There was additional limitation of functional ability during flare-ups or repeated use over time. These included more pain, decreased endurance, increased weakness, and intermittent right ankle locking. Muscle strength for plantar flexion and dorsiflexion were both rated four out of five. The Veteran had had shin splints. Imaging studies from 2015 showed right ankle ankylosis. There was a large bony protuberance along the mid superior calcaneus along the posterior subtalar joint. There may have been a fusion with the talus. There also may have been a fusion of the anterior subtalar joint. The Veteran had had or currently had achilles tendonitis or an achilles tendon rupture. The right ankle impacted the Veteran’s ability to work. There was a limitation of ability to perform activities that required prolonged standing, walking far, kneeling, squatting, and running. See March 2015 C&P Exam; March 2015 CAPRI. (6) Medical records from 2014 and 2015 showing right ankle pain and swelling and 2015 imaging studies with an impression of abnormal articulation of the calcaneus and talus with large posterior bony protuberance along the subtalar joint. See March 2015 CAPRI. (7) Medical records from 2011 and 2012 showing ankle osteoarthritis with pain in the joint involving the ankle and foot, and a right ankle MRI with an impression of achilles tendinitis, and a small lateral talar dome degenerative cyst. See November 2014 CAPRI. (8) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran’s documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community or the limits of the examiner’s medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 5. Readjudicate the issues on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan, 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.