Citation Nr: 21002899 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-31 146A DATE: January 19, 2021 ORDER An initial 30 percent rating for service-connected high grade talofibular ligament strain of the left ankle is granted. From August 30, 2017, a total disability rating based on individual unemployability (TDIU) is granted. REMANDED An initial higher rating in excess of 30 percent rating for service-connected high grade talofibular ligament strain of the left ankle. Special monthly compensation (SMC) due to the loss of use of one foot pursuant to 38 U.S.C. § 1114.   FINDINGS OF FACT 1. Since the award of service connection, the Veteran’s high grade talofibular ligament strain of the left ankle has manifested by at least marked ankle disability. 2. From August 30, 2017, the Veteran’s service-connected disabilities have precluded her from following or securing substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating for service-connected high grade talofibular ligament strain of the left ankle are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5262. 2. From August 30, 2017, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2011 to December 2011. The case is on appeal from a January 2013 rating decision. In a subsequent July 2015 rating decision, the RO increased the Veteran’s left ankle disability from 10 to 20 percent effective December 17, 2011. The RO also granted service connection for left lower extremity neuropathy as secondary to the Veteran’s left ankle disability and assigned a noncompensable rating effective February 20, 2013. Following a July 2015 statement of the case (SOC), the Veteran limited the scope of the present appeal to the issue of a higher rating for his left ankle disability and associated symptoms. See September 2015 VA Form 9. In October 2018, the Veteran testified at a Board hearing. Additional evidence has been associated with the Veteran’s claims file subsequent to the most recent supplemental statement of the case (SSOC). In October 2020, the Board sent the Veteran a letter asking her if she wished to waive initial RO consideration. See 38 C.F.R. § 20.1305(c). As there was no response, the Board will remand any aspect of the appeal that is not granted at this time. 1. An initial higher rating in excess of 20 percent for service-connected high grade talofibular ligament strain of the left ankle. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Specific Rating Criteria The limitation of motion of the ankle is contemplated under 38 C.F.R. § 4.71a, DC 5271. Under that DC, a 10 percent is warranted for moderate limitation of motion of the ankle, whereas a maximum 20 percent is warranted for marked limitation of motion. In the present case, while there is no evidence of malunion or nonunion of the tibia or fibula, the RO rated the Veteran’s left ankle disability by analogy under DC 5262 as a more suitable criteria given the Veteran’s talofibular injuries and subsequent surgeries and symptomatology. Under that DC, A 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion, with loose motion, requiring a brace. As the criteria set forth in DC 5262 is not only suitable, but more beneficial to the Veteran’s left ankle disability claim, the Board will not interfere with the RO’s determination. Analysis At the outset, the Board notes that for the periods between February 20, 2013 to May 31, 2013; September 18, 2013 to October 31, 2013; and January 13, 2017 to April 30, 2017, the Veteran has been awarded total disability evaluations pursuant to 38 C.F.R. § 4.30 (convalescence ratings). Accordingly, the Board will not interfere with those rating actions. As to the merits of the appeal, the Veteran contends that the initial and currently assigned 20 percent rating does not compensate for the actual severity of her symptoms. First, the Board notes that the words “slight,” “moderate,” and “marked” are not defined in DC 5262. The Cambridge English dictionary defines marked as “a change or difference in behavior or in a situation [that] is very obvious or noticeable.” See https://dictionary.cambridge.org/us/dictionary/english/marked. In April 2012, the Veteran was afforded an initial VA examination in connection with the present claim. She reported daily pain with weight bearing, difficulty with weight bearing, limping due to ankle pain, and that she had not been able to work due to the need to elevate her left leg as a result of her daily pain. The Veteran further reported falling episodes due to not being able to bear “any weight” on her left leg due to pain. The VA examiner noted plantar flexion to 30 degrees and dorsiflexion to 10 degrees without additional functional loss during repetitive testing. The VA examiner provided that the objective findings such as less movement than normal, excess fatigability, pain on movement and disturbance of locomotion all contribute to the Veteran’s functional loss and impairment. The examiner also indicated that the Veteran requires assistive devices to ambulate, such as crutches, a CAM boot and a left ankle brace on a regular basis. The Veteran was afforded a second VA examination in October 2012. She continued to report chronic pain in the left ankle which is worse with weight bearing activities. Again, she reported the use of crutches with a CAM boot walker when out of her house and a sports ankle brace at home. She also noted restricted activities at home and that although she can drive, she prefers not to do so as much. While no ankylosis was found during the examination, the Veteran reported intermittent episodes of “locked ankle” and intermittent swelling which she treats with leg elevation and ice. Notwithstanding the foregoing, the examiner opined that her ankle disability does not impact her ability to work. A third VA examination was afforded in April 2014. The Veteran reported flare-ups with sharp pain described as a 9 in a scale from zero to 10 when standing for longer than 5 minutes, when walking for any amount of time, during cold/damp weather or when attempting to climb stairs. The VA examiner noted that pain is accompanied by swelling, fatigue, lack of endurance and instability. The examination report indicates that flares occur “a few times a week” and last between 2 to 3 days, subside, and then reoccur. The VA examiner acknowledged that the foregoing symptoms interfere with walking, standing and/or climbing stairs. It was noted that the Veteran underwent a left ankle Brostrom procedure in February 2013, and a subsequent surgery in September 2013 during which her peroneal nerve was dissected in an effort to decrease her persistent pain, burning and associated symptoms. ROM testing revealed her plantar flexion to 45 degrees and dorsiflexion to 10 degrees. While the report indicates that the Veteran was able to conduct repetitive use testing without additional functional loss, the VA examiner indicated that the Veteran’s less movement than normal, excess fatigability, pain on movement, swelling, and interference with sitting, standing and weight bearing all contribute to her additional functional loss and/or impairment during repetitive use. In sum, the VA examiner concluded that the Veteran would have difficulty performing jobs that require standing, walking or climbing stairs but would still be able to perform sedentary work. The examiner added that the Veteran’s disability moderately impacts her ability to work. A fourth VA examination was afforded in April 2016. Again, the Veteran reported she is not able to stand for longer than 5 minutes at times, which renders her unable to work out, to keep up with the housework or to simply cook. She also indicated that the pain in her left ankle is constant and that she relies on a cane to ambulate, but only 150 to 200 feet at a time, still with pain. In addition, the Veteran stated that she continues to have swelling, difficulty climbing stairs and experiences severe pain when squatting and that her ankle rolls and get twisted. The Veteran explained that she experiences pain by just wearing shoes and socks. The VA examiner noted plantar flexion to 40 degrees and dorsiflexion, again, remaining at 10 degrees. The examination report reflects that the Veteran was able to perform repetitive use but with additional loss of motion. The examiner indicated that the Veteran’s pain, fatigue and weakness are factors that contribute to her decrease in ROM. The examiner further acknowledged pain on weight bearing and that although the Veteran was not examined immediately after repetitive use over time or during a flare-up, the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and with the symptoms experienced during flares. The VA examiner noted that the Veteran constantly uses a brace and a cane, and occasionally a motor scooter. In sum, the VA examiner concluded that the Veteran has constant pain, is unable to walk far and unable to stand long which, in her opinion, results in a moderate functional impairment. The Veteran was most recently afforded a VA examination in June 2017, in connection with a separate claim for a temporary total disability rating in connection with the January 2017 left ankle arthroscopic surgery. The Veteran reported constant stabbing pain described as a 9 in a scale of zero to 10. While the Veteran reported some improvement since the surgery, she still indicated that pain is worse with standing and walking, that she is able to ambulate for about 30 minutes with a cane and about 4 minutes without it, both scenarios accompanied by pain. The Veteran reported she was able to complete some activities of daily living (ADLs), but still requires her husband assistance at least twice a week; that she limits her driving to distances within a 20-minute drive; and that she accompanies her husband to do grocery shopping but cannot carry anything heavier than 1 lb. In general, the Veteran attributed her functional loss to decrease ambulation and inability to stand but only for short periods, which in turn have resulted in modification of daily chores. The VA examiner noted plantar flexion to 45 degrees and dorsiflexion to zero degrees. No ankylosis was noted in the report. In conclusion, the VA examiner stated that the Veteran would less likely be capable of performing any job requiring sustained walking, climbing, standing due to her left ankle recent surgery. Post-service treatment records reflect diagnoses of left ankle instability and left peroneal tendinitis. See February 7, 2013 private treatment notes from Dr. P.R.B. In February 2013, the Veteran underwent a left Brostrom ankle ligament repair given her chronic left ankle instability. See February 20, 2013 Operative Report from The Westerly Hospital. Thereafter, she continued reporting pain, numbness, instability, burning along the lateral ankle and extremely hypersensitivity to touch. See April 4, 2013 Lawrence Memorial Hospital progress notes). While in the recovery period, she injured her ankle during a physical therapy session. Shortly thereafter, the Veteran was diagnosed with hyper dysesthesias in the superficial peroneal nerve distribution and peroneal brevis tendinopathy. See June 20, 2013 private treatment notes. The Veteran reported she was unable to drive due to her ankle pain. See July 23, 2013 progress notes. A diagnosis of superficial peroneal neuroma was also rendered, and the Veteran underwent a peroneal neurectomy in which her peroneal nerve was excised. See September 18, 2013, Operative Report from The Westerly Hospital. Nonetheless, the Veteran continued to experience phantom feelings in her foot (see October 1, 2013 progress notes); and numbness with ankle locking. See October 29, 2013 progress notes. In July 2015, a private health provider indicated that the Veteran’s prior surgical procedures have only shown partial improvement and that her symptoms are refractory to physical therapy and to medication. It was further added that such type of treatments has shown to actually aggravate her symptoms. The physician noted pain and discomfort associated with swelling, which in turn is aggravated by use. Ultimately, the provider noted that “there is not a lot that can be done for [the] residual symptoms other than what has been tried [in the past].” See July 15, 2015 progress notes from Dr. S.Y.W. VA treatment records reflect that the Veteran has not been able to work since her ankle injury (see December 4, 2015 progress notes); continues to experience severe pain which is not controlled by bracing (see January 4, 2016 progress notes); reported severe and worsening pain with swelling and snapping on the outside of the left ankle which is not alleviated by the ankle brace (see March 14, 2016 progress notes); severe pain from left mid-foot up through the calf area for which the Veteran was prescribed narcotic medication every four hours (see April 11, 2016 progress notes); reported constant pain described as a 7.5 in a scale of zero to 10 (see May 25, 2016 progress notes); that there has been little to no improvement in her left ankle despite the wearing of an ankle brace for over a year (see June 13, 2016 progress notes); and significant amount of pain on the lateral aspect of the ankle as well as the feeling of locking and catching in the ankle joint which has significantly inhibited her ability to participate in everyday activities (see October 21, 2016 progress notes). Thereafter, the Veteran underwent a third surgery; a left ankle arthroscopy and ligament reconstruction. See January 13, 2017 Report Summary. Nevertheless, the Veteran continues to report significant levels of pain, stiffness, and inability to walk longer than 30 minutes with the support of a cane or longer than 5 minutes without it. See June 6, 2017 progress notes. During her November 2018 Board hearing, the Veteran testified that she cannot drive by herself nor has the ability to function on her own. The Veteran asserted she has severe muscle atrophy of the left ankle with numbness. The Veteran also indicated that she cannot carry anything heavier than 2 lbs. as it would increase her ankle pain, that anything that touches her leg is painful, and that she is dependent on her husband and her cane to perform her ADLs. The Board has considered the medical and lay evidence of record and finds that the Veteran’s high grade talofibular strain of the left ankle, which has manifested by a marked disability of the left ankle, warrants a 30 percent rating. First, the Board finds the Veteran’s lay statements as to the symptoms experienced throughout the appeal period are competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As to the medical evidence, while the April 2014 and April 2016 VA examiners indicated that that the Veteran’s disability “moderately” impacts her ability to work, the opinions appear to have been rendered from a work-like setting perspective and not necessarily as an assessment of her overall disability picture. The evidence in this case reflects that the Veteran is not able to move freely; to place any weight in her left leg without resulting in pain; to perform ADLs without assistive devices or without the assistance of her husband; not able to drive but only for short periods of 20 minutes or less; to stand for longer than 5 minutes; and to experience pain triggered by just wearing shoes and socks. The overall impact in her functional ability and the fact that after three surgical procedures the Veteran continues to experience the same symptoms could reasonably be construed as an “obvious and noticeable” marked disability of the left ankle. The foregoing is essentially supported by the reports rendered by the VA examiners and by her private and VA health providers. The April 2012, October 2012, April 2014, April 2016, and June 2017 VA examinations recorded less movement than normal, excess fatigability, pain on movement, swelling, and interference with sitting, standing and weight bearing which contribute to the Veteran’s loss of function and impairment. Moreover, the April 2016 VA examiner’s opinion stated that the examination was medically consistent with the Veteran’s statements describing her functional loss with repetitive use over time and with the symptoms experienced during flares. Additionally, post-service medical records indicate that the Veteran’s symptoms are refractory to treatment as they persistently continue to manifest with the same severity. In light of the foregoing, the Board finds that a marked impairment of the left ankle is shown. This characterization of her impairment corresponds to a 30 percent rating under DC 5262. In sum, the Board concludes that at least a 30 percent rating is warranted for the Veteran’s left ankle condition. The Veteran is not prejudiced by this intermediary grant of benefits. The issue then becomes whether an initial rating in excess of 30 percent is warranted. That issue is further addressed in the remand below. 2. A TDIU. Although the Veteran limited the scope of the appeal to exclude a TDIU claim, the issue was later raised again. See November 2018 VA Form 21-8940. In a February 2019 rating decision, the RO again denied the claim of entitlement to a TDIU. Nevertheless, as the issue of a TDIU stems from the earlier initial claim for increase for a left ankle disability, the Board will assume jurisdiction of the TDIU claim pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). Thus, the issue of entitlement to a TDIU is included as part of the appeal. Legal Criteria In TDIU claims, a total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities, provided that the Veteran has one service- connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. See 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual’s particular circumstances. Rice, 22 Vet. App. at 452. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran’s history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Analysis The Veteran contends that a TDIU is warranted as the combined effects of her service-connected left ankle disability and adjustment disorder with depressed mood have precluded her from securing or following substantial gainful employment. See November 2018 Application for Increased Compensation Based on Unemployability. The Veteran has a combined rating evaluation of 80 percent effective August 30, 2017, with at least one disability rated at 40 percent or higher. In sum, from that date the Veteran is service-connected for adjustment disorder with depressed mood rated at 70 percent; high grade talofibular strain of the left ankle now rated at 30 percent; left ankle scars rated at 20 percent; and a non-compensable evaluation for left ankle superficial peroneal neuropathy. Accordingly, the criteria for a TDIU on a schedular basis is met, but only from August 30, 2017, as this is when service connection went into effect for the psychiatric condition. See 38 C.F.R. § 4.16(a). In the November 2018 VA Form 21-8940 (Application for Increased Compensation Based on Individual Unemployability), the Veteran reported last working full-time on December 16, 2011, date on which she was released from active duty, as she asserts that following separation, her left ankle disability and associated symptoms preclude her from working. The Veteran added that her service-connected adjustment disorder directly interferes with her employability. She reported that her only education, besides high school, was the training received during her advanced individual training (AIT) in the U.S. Navy. The Veteran states that prior to her enlistment, her work experience was as a waitress and as customer service representative for a retail store and later at a casino. A TDIU requires evidence that the Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The Board has reviewed the evidence of record and for the reasons set forth below finds that from August 30, 2017, the Veteran has not only met the rating requirements set forth in 38 C.F.R. § 4.16(a) (a combined rating of 70 percent with at least one service-connected disability rated at 40 percent), but also that the combined effects of her service-connected adjustment disorder with depressed mood and associated symptoms, and her left ankle disability and all its associated symptoms have precluded her from securing or following substantially gainful employment. The Board notes that during her June 2017 VA examination in connection with her left ankle disability, the VA examiner indicated that the Veteran “would less likely be capable of performing any job requiring sustained walking, climbing, or standing due to her left ankle [status post] recent surgery.” However, the examiner opined that she, “as likely as not, is capable of performing a sedentary type job given her reported ability to drive short distances, perform ADL’s, go grocery shopping and walk with a cane. During a December 2017 VA psychological examination, the Veteran reported lack of trust in others, impulsivity, depressed mood, anxiety, low motivation, difficulties in relationships, difficulties adapting to stressful situations, sleep impairment, self-harm behaviors, and suicidal ideation related to pain levels. The VA examiner noted that her functioning is primarily impaired from her direct physical leg condition and that the Veteran attributes her lack of employment directly to her leg condition. The examination report makes reference to a letter from her husband which indicates that he has to “babysit” her, assist her with bathing, dressing, assist if she is overwhelmed with pain, cooking, driving and shopping. In addition, the Veteran reported that she has been unable to work because “all the jobs she looked at require being able to carry 20 pounds, involve too much sitting at a desk, or too much standing.” It was noted that she has not work or go to school since her military discharge. The VA examiner acknowledged the Veteran experiences irritable behavior and angry outbursts, reckless or self-destructive behavior, hypervigilance, and problems with concentration that cause clinically significant distress or impairment in social, occupational, or other important areas of functioning, to include to include difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. The Veteran underwent a second VA psychological examination in December 2018. While the Veteran reported symptoms such as avoidance of crowds, not going anywhere without her husband, strong negative believes, fear, anger, shame, distant and cut off from others, emotional numbness, daily irritability with anger, the VA examiner stated that she could “not opine on the Veteran’s occupational functioning without resort[ing] to mere speculation given that the Veteran has not worked since 2010.” VA treatment records dated from July 2017 to November 2018 reflect that the Veteran has reported difficulties managing her emotions and anxiety which would lead to self-harm behavior, that her mood has worsened by her chronic pain from her lower extremity, which has required multiple surgeries over the years, avoidance, negative changes in thinking and difficulty forming intimate relationship and trusting others (see July 20, 2017 progress notes); feeling down, depressed, or hopeless with little interest in doing things, feeling tired or having little energy and trouble concentrating on things (see November 07, 2017 Depression assessment report); and that given her ankle pain and symptoms she is not able to run, walk or drive (see June 29, 2018 progress notes). During her October 2018 Board hearing, the Veteran testified that she is not able to work, drive, walk or even shower normally by reason of her left ankle pain. The Veteran’s husband added that she requires his assistance with most ADLs. The Board notes that that the Veteran’s short 3-year work experience prior to her enlistment in the U.S. Navy appears to be limited to employment as a customer service representative and as a waiter. There is no other indication in the record that the Veteran has any experience in, or the potential for, any other type of non-physical job. The records further reflect that her disabilities progressed and interfered with her social and occupational functioning to a greater degree, particularly due to her continuous depression, anxiety, irritability, anger outbursts, concentration and difficulty adapting to stressful circumstances at work or in a work-like setting to perform any type of non-physical job. Additionally, her employability appears to also be partially limited due to her left ankle pain, swelling, and discomfort which limits her driving and precludes her from standing, walking, lifting or any other activities of the like to perform a physical job. The evidence of record reflects that these combined effects eventually turned into near-continuous issues that directly interfere with the Veteran’s ADLs. This led to her subsequent difficulty to establish and maintain effective relationships and to adapt to stressful circumstances, which in turn led to suicidal ideations, ultimately rendering her unable to secure or follow a substantially gainful occupation following her separation from service, and as consistently noted by the Veteran throughout the pendency of the appeal. This is also supported by the additional medical evidence of record. In light of the above, and after consideration of the Veteran’s individual circumstances, to include her education, training, and work history, the Board finds that the evidence has reached a level of equipoise to support the Veteran’s eligibility for TDIU on a schedular basis from August 30, 2017. Thus, from August 30, 2017, the severity of the combined effects of the Veteran’s left ankle disability and adjustment disorder with depressed mood and related symptoms preclude her from securing or following a substantially gainful occupation. This is particularly so when reasonable doubt is resolved in her favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, a TDIU is warranted from that date. REASONS FOR REMAND 3. An initial higher rating in excess of 30 percent for high grade talofibular ligament strain of the left ankle. 4. SMC based on the loss of use of one foot under 38 U.S.C. § 1114. The Board has partially granted a 30 percent disability rating for the Veteran’s left ankle disability. However, a claimant is presumed to seek the higher rating available. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As noted previously, following the July 2016 SSOC, additional evidence in the form of VA medical records has been associated with the Veteran’s claims file. On October 26, 2020, the Veteran was notified by letter of this additional evidence and about her rights to waive, in writing, initial RO consideration. The Veteran was provided with 45 days to reply. As no written response waiving initial RO consideration was received within that period, the that the RO should consider such evidence on remand in accordance with 38 C.F.R. § 20.1305(c). Thereafter, the RO should address whether a higher rating in excess of 30 percent for high grade talofibular ligament strain of the left ankle is warranted. With respect to SMC based on the loss of one foot, VA treatment records reflect that the Veteran has requested to have her left ankle amputated given the severe pain as she cannot walk, run or drive anymore (see June 29 2018 progress notes); that she has a dropped foot and that her left leg is about half the size of her right leg (see October 2018 Board hearing transcript); and that her pain is so debilitating that she has considered a left ankle amputation (see December 2018 VA examination). The Board notes that the issue of entitlement to SMC based on the loss if use of one foot has been raised by the record. See 38 U.S.C. § 1114 (k). See Morgan v. Wilkie, 31 Vet. App. 162, 167 (2019); see also Akles v. Derwinski, 1 Vet. App. 118 (1991) (observing that entitlement to SMC is an “inferred issue” in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue). However, additional medical evidence of record reflects that multiple VA examiner’s throughout the pendency of the appeal have opined that there is no evidence of functional impairment of an extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. See April 2016 VA examination report. Accordingly, the Board finds that remand if warranted for further development and adjudication and for consideration of the SMC claim in accordance with the reasons for remand set forth above. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records dated since November 2018. 2. Request from the Veteran any outstanding private treatment records in connection with these claims. 3. Thereafter, schedule the Veteran for a VA examination (or telehealth interview, records review, etc., if an in-person examination is not feasible) by an appropriate medical professional with respect to the SMC claim based on the loss of one foot. First, the examiner should identify if the Veteran has had at any time throughout the appeal period a loss of use of the left foot, to include shortening of the left lower extremity and or dropped foot. Any indicated testing should be conducted if the examiner deems it appropriate. (i) The examiner should then provide an opinion as to whether any loss of use of any of the left foot could be described as when no effective function such as balance or propulsion remains other than that which would be equally well served by an amputation stump below the knee with use of a suitable prosthetic appliance. (ii) If no to (i) the examiner should explain with this is so. (iii) If yes to (i), the examiner should provide an opinion as to whether the identified loss of use is the result of the Veteran’s service-connected left ankle disability and associated peroneal nerve neuropathy. Consideration should be given to: (1) the Veteran’s statements as to the extreme weakness and numbness experienced; (2) the Veteran’s statements indicating that her toes and left foot drag on the floor; (3) VA treatment records accounting for several falling episodes due to weakness and instability; (4) the Veteran’s statements indicating that she has requested amputation of her left foot as it does not function; and (5) the October 2018 testimony indicating her left leg is shorter than her right. A complete rationale or explanation should be provided for any opinion reached. 4. Then, readjudicate the claims remaining on appeal, including for a higher rating than 30 percent for a high grade talofibular ligament strain of the left ankle with consideration of all evidence with consideration of the evidence associated following the July 2016 SSOC. . RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, 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.