Citation Nr: 21066803 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 15-19 207 DATE: November 2, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for left ankle posttraumatic arthritis and Achilles tendinopathy ("left ankle disability") is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from July 1978 to September 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran presented testimony before a Veterans Law Judge (VLJ) in April 2018. A transcript of the hearing has been associated with the Veteran's electronic claims file. The VLJ who conducted the hearing is no longer employed by the Board. In September 2021, a letter was sent to the Veteran, which offered him the opportunity to elect to appear again for a new Board hearing. The Veteran was provided 30 days from the date of the letter to make his election. Absent any indication from the Veteran, the Board will proceed with adjudicating the claims. The Veteran did not submit any correspondences within 30 days of the date of the letter. Thus, the Board will proceed with adjudicating the Veteran's claims. In September 2018 and March 2021, the Board remanded the increased rating claim on appeal for further development. The matter has returned to the Board for further appellate consideration. When evidence of unemployability is submitted during the course of an appeal of an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In this case, during the April 2018 hearing, the Veteran testified that, at that time he was employed as a monitor for a school bus. He indicated that he experienced a lot of pain on his left ankle since he went up and down steps and walked around the bus garage. He stated that he would shift the weight in order to compensate. He further indicated that if he was on the bus, he would put his feet up to alleviate the pain. Thus, based on the Veteran's statements, his service-connected left ankle disability currently on appeal has impacted his ability to work. As such, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to a disability rating in excess of 20 percent for service-connected left ankle disability is remanded. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the March 2021 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran with a new VA examination to determine the severity of his service-connected left ankle disability, to include compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In June 2021 and August 2021, the Veteran was afforded a VA ankle examination. The examiner did not provide range of motion measurements of either ankle in weight-bearing or non-weight-bearing. Furthermore, while the examination reports noted pain on motion for the left ankle, the point during range of motion where pain started was not noted. The examiner did not provide an explanation as to why such testing was unnecessary. Therefore, the examination did not comply with the requirements in Correia, 28 Vet. App. at 168. Accordingly, to ensure compliance with the March 2021 remand directives and that the record reflects the current severity of the Veteran's left ankle disability, a remand is required for a VA ankle examination. See Stegall, 11 Vet. App. at 271. The Board notes that the record reflects that an examination request for the Veteran's left ankle condition was submitted in September 2021. See September 2021 exam rework scheduling request. However, it does not appear that this request has been fulfilled. Finally, a review of the claims file reveals that the most recent supplemental statement of the case (SSOC) was issued in June 2021. Thus, the August 2021 VA ankle examination has not been considered by the AOJ in conjunction with the claim currently on appeal. Thus, the AOJ must readjudicate the claim with consideration of this additional evidence. 38 C.F.R. § § 19.31, 20.1304(c). 2. Entitlement to a TDIU is remanded. As previously indicated, the Board finds that entitlement to a TDIU has been raised by the record. Rice, 22 Vet. App. at 453-54. The Board further finds that the issue of the Veteran's entitlement to a TDIU is inextricably intertwined with the issue remanded herein. Accordingly, the issue of entitlement to a TDIU must be deferred pending adjudication of the aforementioned appeal. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). Furthermore, the Veteran should be given the opportunity to submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Board finds that, on remand, obtaining a VA Form 21-8940 would be helpful in determining the Veteran's employment status throughout the relevant period, education, and service-connected limitations. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, so as to afford him with an opportunity to provide a description of his employment history and educational background. 3. After completing the above development, schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his service-connected left ankle disability. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the severity of the Veteran's service-connected disability. The examiner should provide all information required for rating purposes, to specifically include range of motion of each ankle in active motion, passive motion, weight-bearing, and non-weight-bearing. Further, the examiner must indicate if movement is limited by pain, and if so, at what point. The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts he is unable to perform range of motion testing due to pain. 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. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disabilities on the Veteran's ordinary activity, including his ability to work. The examiner should also review the VA examinations containing range of motion findings pertinent to the Veteran's left ankle conducted during the course of the appeal. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran's functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner is requested to comment on the severity of the Veteran's service-connected left ankle throughout the rating period. The examiner should also discuss the effect of the service-connected left ankle disability on his occupational functioning and daily activities. The VA examiner should present findings necessary to consider the claim pursuant to the new musculoskeletal regulations. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. After completing all indicated development, the Veteran's claims, to include the issue of entitlement to a TDIU, should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.