Citation Nr: 21064759 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-03 911A DATE: October 21, 2021 REMANDED Entitlement to a rating in excess of 10 percent for tendinitis of the left leg (limitation of flexion) is remanded. Entitlement to a rating in excess of 10 percent for tendonitis of the left leg (limitation of extension) is remanded. Entitlement to a rating in excess of 10 percent for ganglion cyst of the left wrist is remanded. Entitlement to a compensable rating for scar of the left wrist is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), including on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1983 to April 1986 and from December 1990 to April 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2012 and November 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the November 2012 rating decision, the RO granted service connection for tendonitis of the left leg and ganglion cyst of the left wrist and assigned noncompensable ratings, effective October 13, 2011, respectively. In the November 2015 rating decision, the RO granted service connection for a left wrist scar status post ganglion cyst removal and assigned a noncompensable rating, effective October 13, 2011. In addition, the RO increased the ratings for left leg tendonitis and ganglion cyst of the left wrist to 10 percent, effective October 13, 2011, respectively. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2019. A copy of the transcript has been reviewed and associated with the claims file. In a subsequent August 2020 rating decision, the RO granted service connection for tendonitis of the left leg (limitation of extension) and assigned a 10 percent disability rating, effective July 22, 2020. These matters were last before the Board in January 2021, at which time they were remanded for additional evidentiary development. While in remand status, in a June 2021 rating decision, the RO granted service connection for spinal stenosis with degenerative arthritis and a left foot strain. Accordingly, the issues of entitlement to service connection for spinal and left foot disabilities are no longer before the Board. In a July 2021 rating decision, the RO granted TDIU, effective July 22, 2020. 1. Entitlement to a rating in excess of 10 percent for tendinitis of the left leg (limitation of flexion) is remanded; 2. Entitlement to a rating in excess of 10 percent for tendonitis of the left leg (limitation of extension) is remanded. A VA examination for the left knee and leg was performed in July 2021, at which time the examiner noted that there was evidence of pain with weight-bearing and non-weight bearing. However, the examiner failed to provide correlating range of motion findings in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the Board finds that an addendum medical opinion is warranted on remand. 3. Entitlement to a rating in excess of 10 percent for ganglion cyst of the left wrist is remanded; 4. Entitlement to a compensable rating for scar of the left wrist is remanded. In the January 2021 remand, the Board instructed the RO to schedule a VA examination by a physician to assess the severity of the Veteran's service-connected left wrist and ganglion cyst and associated scar. Although a VA examination was performed in June 2021, this examination was not performed by a physician and did not comply with the Board's remand instructions. Moreover, the June 2021 examiner noted that the Veteran was unable to move his left wrist. However, she indicated that he did not have ankylosis. The Board finds that the examiner should discuss whether the Veteran's left wrist exhibits the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (holding that holding that ankylosis of a joint can be demonstrated by its functional equivalent). Accordingly, the Board finds that a new VA examination is warranted on remand. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), including on an extraschedular basis, is remanded. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). In the present case, the Veteran's claim for increased ratings for his left wrist and left leg tendonitis have been pending since October 13, 2011. He submitted a TDIU application in November 2013 and indicated that he stopped working as a chef in 2011 due to his left wrist and left leg disabilities. Although the RO granted a TDIU, effective July 22, 2020, the RO did not refer the claim to the Director, Compensation Service, for extraschedular consideration for the period prior to this date pursuant to the Board's remand instructions. The Veteran's combined disability rating prior to July 22, 2020, is 60 percent. Thus, he does not meet the threshold requirement for a TDIU. Nevertheless, VA's policy is to rate totally disabled all veterans who are unemployable. In such cases, the rating boards should submit the case to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Therefore, the claim of entitlement to a TDIU prior to July 22, 2020, must be referred to the Director, Compensation Service. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from April 2021 to the present. 2. After completion of #1, forward the claims file, including a copy of this remand to the July 2021 examiner for an addendum medical opinion. If the July 2021 examiner is unavailable, forward to an appropriate clinician. If the July 2021 examiner is unavailable, forward to an appropriate clinician. A VA examination is only necessary if deemed so by the examiner. The examiner should conduct a review of the record and respond to the following questions: A. With regard to the July 2021 VA examination, provide an estimate of the Veteran's left leg range of motion (flexion and extension) in weight bearing and non-weight bearing position and note at which point there is pain, if any. B. With regard to the July 2021 VA examination, indicate how far back these results apply (i.e., one year, two years, etc.) The examiner is to attempt to elicit information from the record to reply to A, B, and C. Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Note: Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. The examiner may indicate the degree of confidence that they place on their estimate, on a scale of 1 to 5, with 1 being least confident and 5 being most confident. The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. 3. After completion of #1 and #2, schedule the Veteran for a VA examination by a physician to assess the severity of the Veteran's service-connected left wrist and ganglion cyst and associated scar. The claims file, including a copy of this remand, must be obtained and associated with the Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing, as well as weight-bearing and non-weight-bearing testing, must be conducted. If the examiner is unable to conduct this testing, he or she should explain the reasoning and attempt to elicit this information from the record and provide an estimate. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. Flare-ups have been reported throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. He or she should estimate the degree of lost motion during such flare-ups. The examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being the most confident. The examiner should also provide an opinion as to whether his service-connected left wrist disability is associated with ankylosis (or the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis) and, if so, whether it manifests in favorable ankylosis in 20 to 30 degrees dorsiflexion; ankylosis in any position except favorable or unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. The examiner should also discuss whether the left wrist manifests in extremely unfavorable ankylosis (or the functional equivalent of extremely unfavorable ankylosis, i.e., functional loss consistent with that contemplated by extremely unfavorable ankylosis) and, if so, rate under diagnostic code 5125. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. With regard to the Veteran's left wrist scar, the examiner should discuss the severity of the scar, including whether it is painful and/or unstable. The examiner should discuss the impact, if any, that his left wrist disability and scar have on his ability to work. If possible, the examiner should discuss how far back the examination results apply (i.e., one year, two years, etc.). The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. Thereafter, if the Veteran does not meet the schedular requirements under § 4.16(a), refer the claim for a TDIU to the Director, Compensation Service for the period prior to July 22, 2020, and notify the Veteran and his representative of such action. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.