Citation Nr: 21074672 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-17 454 DATE: December 16, 2021 ISSUES 1. Entitlement to service connection for asthma, claimed as a lung condition secondary to lung infections. 2. Entitlement to a compensable disability rating for service-connected inversion injury, left ankle, rated as zero percent disabling prior to June 11, 2021. 3. Entitlement to a disability rating greater than 10 percent for service-connected inversion injury, left ankle, from June 11, 2021. 4. Entitlement to an initial disability rating greater than 20 percent for a left shoulder osteoarthritis (OA) instability and labral tear disability. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER The appeal on the issue of entitlement to service connection for asthma, claimed as a lung condition secondary to lung infections, is dismissed. Entitlement to a compensable disability rating for service-connected inversion injury, left ankle, rated as zero percent disabling prior to June 11, 2021 is denied. Entitlement to a disability rating greater than 10 percent for service-connected inversion injury, left ankle, from June 11, 2021 is denied. REMANDED Entitlement to an initial disability rating greater than 20 percent for a left shoulder osteoarthritis (OA) instability and labral tear disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A July 2021 rating decision already granted service connection for asthma, claimed as a lung condition secondary to lung infection; with a notation that this represented a full grant of the benefit sought on appeal and a resolution in full. 2. Prior to June 11, 2021, inversion injury, left ankle, is manifested by a diagnosed left ankle disability but with full range of motion; no pain, weakness, fatigability, or incoordination limiting functional ability with repeated use over time; and no ankylosis, instability, dislocation, shin splints, stress fractures, achilles tendonitis, malunion of the calcaneus or talus, or a talectomy. 3. From June 11, 2021, inversion injury, left ankle, is manifested by moderate limitation of motion, with range of motion after repetitive use with pain productive of plantar flexion to 20 degrees and dorsiflexion to 5 degrees; functional loss in walking, standing, and using stairs, crepitus with localized tenderness or pain on palpitation for the left ankle, and achilles pain with activity; and no muscle atrophy or ankylosis. CONCLUSIONS OF LAW 1. There remains for appellate consideration no case or controversy with respect to the claim for entitlement to service connection for asthma, claimed as a lung condition secondary to lung infection, over which the Board may exercise jurisdiction. 38 U.S.C. §§ 511, 5107, 7104; 38 C.F.R. §§ 19.4, 19.5, 20.101. 2. Prior to June 11, 2021, the criteria for a compensable disability evaluation for inversion injury, left ankle have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.14, 4.3, 4.31, 4.4, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5271. 3. From to June 11, 2021, the criteria for a disability evaluation greater than 10 percent for inversion injury, left ankle have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.14, 4.3, 4.4, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1976 to September 1979, and from May 1980 to June 1999. This matter is before the Board of Veterans Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in September 2020. A copy of the hearing transcript has been associated with the claims file. The Board observes that during the pendency of his appeals, February 2021 and July 2021 rating decisions granted several service connection and increased rating claims, including service connection for asthma. They are discussed in relevant part below. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Moot Appeal 1. Entitlement to service connection for asthma, claimed as a lung condition secondary to lung infections The Board incorporates its discussion from the sections above by reference. The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to Veterans or the dependents or survivors of Veterans. 38 U.S.C. § 511 (a); 38 C.F.R. § 20.101 (a). One of the principal functions of the Board is to make determinations of appellate jurisdiction. 38 C.F.R. § 19.4. The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue. 38 C.F.R. § 20.101 (d). As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, the claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). By way of background, in September 2020, the Veteran testified regarding his exposure in service and current respiratory disability. First, he described the types of chemicals to which he alleges he was exposed: Well, that's a great question. There was a lot of, well, my job was as an aviation structural mechanic chief. One of my primary duties for the first 15 years was I was a certified aircraft painter. So, in painting aircraft, there's as much into the preparation, which is sanding, treating, priming, and then actual paint combination. A lot of isocyanates I inhaled, a lot of methylethylketones, a thing they called MEK, polyurethane paint, epoxy paint, just a ton of different chemicals, you know. Between the PPE they would give you the protective gloves were so big and bulky, one of my responsibilities, huh? See September 2020 hearing transcript, p. 17. The Veteran explained that he only went to the sick bay over recurrent pneumonia and to get shots and physicals. He eventually sought treatment for asthma after separation, including trying albuterol, Advair, and something stronger. Id at p. 19. Next, in February 2021, the Board remanded this and other issues for additional development. Significantly, the July 2021 Rating decision granted service connection for asthma. The RO assigned an evaluation of 30 percent effective January 15, 2014. The Rating decision concludes, "This decision represents a full grant of benefits sought on appeal for this issue. As such, this issue is considered resolved in full." This extinguished the appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue was not reflected in the July 2021 Supplemental Statement of the Case (SSOC). Mistakenly, the October 2021 Informal Hearing Presentation (IHP) continued to list the issue. It reads, "3. Did the AOJ err when it denied service connection for asthma claimed as lung condition secondary to lung infections?" Page 4 of 5 contains additional law and argument advancing an appeal for service connection for asthma. VA's internal VACOLS tracking system also listed the issue as actively on appeal. However, this is incorrect as the complete benefit sought had already been granted. There is no pending earlier effective date or increased rating claim. There no longer remains any case or controversy pending before the Board as contemplated by 38 U.S.C. §§ 7104, 7105 and 38 C.F.R. § 19.4. In the absence of any justiciable question, the appeal as to this service connection claim must be dismissed. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Increased Rating 2. Entitlement to a compensable disability rating for service-connected inversion injury, left ankle, rated as zero percent disabling prior to June 11, 2021 3. Entitlement to a disability rating greater than 10 percent for service-connected inversion injury, left ankle, from June 11, 2021 The Board incorporates its discussion from the sections above by reference. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability ratings have been previously staged. As discussed below, the same stages are still warranted. The Veteran's left ankle disability has been evaluated as zero and 10 percent disabling under Diagnostic Code 5271, for ankle limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Under DC 5271, a 10 percent disability rating is awarded for moderate limitation of ankle motion defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A maximum of 20 percent is awarded for marked limitation of ankle motion, defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Full range of motion of an ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Other rating criteria addressing ankle impairment require findings of ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356 (2018). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). See 38 C.F.R. §§ 4.40, 4.45, 4.59. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends that increased disability ratings are warranted for the left ankle during the respective stages. Notably, in order to receive an increased rating greater than 10 percent for the ankle disability for the most recent stage, the evidence must demonstrate marked limitation of ankle motion. Such is not the case as the most probative evidence discussed below does not show this degree of impairment. By way of evidentiary history, the Veteran filed an increased rating claim for the left ankle disability on a January 15, 2014 via a VA 21-0820 Report of General Information. Next, the Veteran was afforded a March 2015 VA ankle examination with Disability Benefits Questionnaire (DBQ). The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination. Upon clinical examination with repetitive use over time, the left ankle was productive of 45 degrees of flexion and 20 degrees of dorsiflexion (extension). The VA examiner indicated that pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use over time. There was no ankylosis, instability, dislocation, shin splints, stress fractures, achilles tendonitis, malunion of the calcaneus or talus, or a talectomy. Weeks later, the March 2015 rating decision describes that a noncompensable disability evaluation was still assigned due to a diagnosed disability but with no compensable symptoms. This was based upon the findings of March 2015 VA examination showing no left ankle impairment, including due to pain. Next, in the March 2016 Notice of Disagreement (NOD), the Veteran asserts that he originally was awarded a 10 percent disability evaluation for his left ankle. He missed a VA examination in 2002 or 2003 for the ankle, which resulted in the reduction to a noncompensable evaluation years ago. See January 2002 Rating decision; 38 C.F.R. § 3.655. He alleges that he continues to have pain in his ankle, does not have stability, and cannot do jumping jacks without pain. Later, in the March 2017 VA Form 9, the Veteran asserts that he has limited range of motion, with the most difficulty with extending the ankle. He has tight pressure in the ankle with extension, such as pushing a pedal. Later, at the September 2020 Hearing, the Veteran testified regarding left ankle impairment. The Veteran described, "There's a bulge that still sticks out. I have a numbness on the side, and I just don't have the support or the full range that I had prior to the injury." See September 2020 Hearing Transcript, p. 7. The Veteran's representative summed this up as functional loss of motion. The Veteran explained that he can only stand five minutes without pain. He described the feeling as pain when climbing stairs and pushing off of the ankle. The feeling is a pressure and numbness. See September 2020 Hearing Transcript, p. 9. Next, the Veteran was afforded a June 11, 2021 VA Ankle conditions examination with Disability Benefits Questionnaire (DBQ). The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination. The VA examiner documented left ankle pain and instability with activity. The VA physician indicated that the Veteran did not report flare ups. Initial range of motion (ROM) testing revealed the left ankle was productive of 30 degrees of plantar flexion and 10 degrees of dorsiflexion for the left ankle. There was pain on both plantar flexion and dorsiflexion. The Veteran endorsed functional loss in walking, standing, and using stairs. There was pain in weight bearing and on non-weight bearing, and on active and passive motion. There was also crepitus, and localized tenderness or pain on palpitation for the left ankle. There was no additional loss of ROM after three repetitions. Nevertheless, the VA examiner indicated that pain limits functional ability with repeated use over time. With repetitive use and given pain, plantar flexion was to 20 degrees and dorsiflexion to 5 degrees. There were no additional contributing factors to disability. The VA physician concluded that the impairment in walking, standing, and using stairs would impact the Veteran's ability to perform any type of occupational task. Additional VA and private treatment records show impressions of and treatment for left ankle impairment, and are substantially the same. The Veteran contends that increased disability ratings are warranted for the left ankle across the appeals period. The left ankle disability is currently evaluated as zero percent disabling prior to June 11, 2021 and 10 percent disabling based upon moderate limitation of motion thereafter. 38 C.F.R. § 4.71a, Diagnostic Code 5271. In order to have a compensable disability rating prior to June 11, 2021, there must be compensable symptoms, such as moderate limitation of motion of the ankle based on dorsiflexion less than 15 degrees or plantarflexion less than 30 degrees, or painful motion of the ankle. This is not the case here during the first stage, as the most probative evidence does not demonstrate such severe impairment. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He is competent to report ankle pain, impairment in range of motion, and difficulty standing, walking, and using stairs due to the left ankle dsiability. The most probative evidence is the VA examination results conducted by trained physicians in a clinical setting. The VA physicians elicited a lay history from the Veteran, reviewed the entire claims file, and performed physical examinations. For the stage prior to June 11, 2021, the most probative evidence is the March 2015 VA examination results. They demonstrated that the left ankle was productive of 45 degrees of flexion and 20 degrees of dorsiflexion (extension). This represented full range of motion of the left ankle. The VA examiner indicated that pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use over time. There was no ankylosis, instability, dislocation, shin splints, stress fractures, achilles tendonitis, malunion of the calcaneus or talus, or a talectomy. In short, there was diagnosed disability, but not functional limitations rising to a compensable level. Here, based upon the most probative evidence in the VA examination which assessed the current severity of the Veteran's ankle dsiability, the Board finds that the Veteran's left ankle disability is best summarized by the current noncompensable disability rating. 38 C.F.R. § 4.31. Prior to June 11, 2021, the left ankle disability is manifested by a diagnosed left ankle disability but with full range of motion of the left ankle; no pain, weakness, fatigability, or incoordination limiting functional ability with repeated use over time; and no ankylosis, instability, dislocation, shin splints, stress fractures, achilles tendonitis, malunion of the calcaneus or talus, or a talectomy. While the other evidence of record reflects that the Veteran experiences pain and has difficulty standing, walking, and using stairs, range of motion testing demonstrated that the Veteran retained full dorsiflexion and plantar flexion of his left ankle during the examination. Any lay reports of ankle pain are outweighed by the more probative, clinical findings of the VA examining physician. There were also no flare ups or other compensable symptoms. The VA physician made the findings based upon medical expertise and after examination in a clinical setting. In reaching this conclusion, the Board acknowledges the Veteran's description of functional loss and other impairment. The most probative evidence is the findings of the VA examiner. There is no "moderate" limitation of motion, ankylosis, or malunion under the governing rating criteria. 38 C.F.R. § 4.71a, Diagnostic Code 5271. In other words, the VA examination results do not establish compensable ankle impairment, including due to pain. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In reaching this conclusion, we considered the allegations of missing an earlier examination in 2002 or 2003 contained in the March 2016 NOD. However, by the increased rating claim roughly one decade later in 2014 and related 2015 VA examination, the clinical findings still revealed no additional limitations due to painful motion. There is no doubt to resolve. Therefore, a compensable dsiability rating for inversion injury, left ankle prior to June 11, 2021 is not warranted. Turning to the stage from June 11, 2021, this is the date when there is evidence of a change in the severity of his left ankle disability. From this date, the left ankle disability is currently assigned a 10 percent disability rating based upon moderate limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. In order to have a higher rating, there must be marked limitation of motion of the ankle based on dorsiflexion less than 5 degrees or plantar flexion less than 10 degrees. This is not the case here, as the most probative evidence does not demonstrate such severe impairment. The most probative evidence is the June 11, 2021 VA examination results. This is the date when there was a demonstrated worsening in the severity of the left ankle dsiability. The VA physician elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination. This VA examination was conducted notably after the Veteran testified regarding significant ankle pain. There was pain on both plantar flexion and dorsiflexion. With repetitive use and given pain, based on information procured from relevant sources including lay statements, plantar flexion was to 20 degrees and dorsiflexion to 5 degrees. The Veteran endorsed functional loss in walking, standing, and using stairs. There was pain in weight bearing and on non-weight bearing, and on active and passive motion. There was also crepitus, and localized tenderness or pain on palpitation for the left ankle. There was no additional loss of ROM after three repetitions. Nevertheless, the VA examiner indicated that pain limits functional ability with repeated use over time. There were no additional contributing factors to disability. In summary, this evidence established moderate limitation of motion of the ankle in the ranges of plantar flexion less than 30 degrees, dorsiflexion less than 15 degrees, and painful motion of the ankle. We find this to be highly probative. Based on all of the above evidence, including the June 2021 VA examination which assessed the current severity of the Veteran's left ankle disability, the Board finds that the Veteran's left ankle disability most closely approximates moderate, rather than marked limitation of motion. For this stage, the inversion injury, left ankle, is manifested by range of motion after repetitive use considering lay statements of plantar flexion to 20 degrees and dorsiflexion to 5 degrees. This fits squarely within the rating criteria for less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. While it represents impairment, including due to pain, it does not rise to the level of marked impairment. C.F.R. § 4.71a, Diagnostic Code 5271. The Board acknowledges the Veteran's description of functional loss regarding not being able to walk long distances or for long periods of time, but this functional loss does not demonstrate more than moderate symptomatology in the left ankle. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Veteran still retained substantial dorsiflexion and plantar flexion of his ankle joint. There was no ankylosis, although there was asymmetric or excessive motion upon the Talar Tilt Test and achilles pain with activity. He did not require assistive devices. His left ankle disability picture is most closely approximated by the compensable, 10 percent disability rating. In reaching these conclusions, we have also considered the Veteran's lay statements of severe pain. Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The Board observes that Saunders was in the context of a service connection claim for a knee disability. It also does not eliminate the need for objective testing results or override the rating criteria. We considered functional impairment due to pain alone as is addressed by Saunders. Overall, the Veteran's functional impairment of the left ankle was not so severe as to be "marked" for this stage. 38 C.F.R. § 4.71a, Diagnostic Code 5271. VA and private treatment records reflect the Veteran's complaints of pain in the ankles, but do not indicate an increase in loss of motion. The Board finds that the Veteran's left ankle disability has been manifested by at most moderate limitation of motion without evidence of ankylosis or muscle atrophy. The current ten percent rating most closely summarizes the left ankle disability picture, including a favorable consideration of lay statements. A higher disability evaluation is not warranted. In reaching this decision, we have considered the Veteran's longstanding belief that he is entitled to an increased rating for his left ankle inversion injury disability, however, we are bound by the rating criteria. As indicated earlier in this decision, there is no evidence ankylosis of the ankle, nor was there any report of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or an astragalectomy that would warrant a higher rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274. The Veteran's left ankle inversion injury disability is manifested by at most moderate limitation of motion, including consideration of painful motion. See DeLuca, Saunders, both supra. The current findings fit squarely within the current ten percent rating. Therefore, the weight of the evidence is against an increased rating greater than 10 percent from June 11, 2021 for inversion injury, left ankle. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims. As such, the benefit of the doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Although the Board regrets any possible delay, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to an initial disability rating greater than 20 percent for a left shoulder osteoarthritis (OA) instability and labral tear disability is remanded. The Board incorporates its discussion from the sections above by reference. The Board observes that 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. DeLuca v. Brown, 8 Vet. App. 202 (1995). If a medical examination report does not contain sufficient information to allow an informed Board decision, then the rating board must return the report as inadequate. See 38 C.F.R. § 4.2 (2017); Bowling v. Principi, 15 Vet. App. 1, 12 (2001); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Once VA undertakes to provide a medical examination, VA must provide an adequate examination or, at a minimum, notify the claimant why one will not or cannot be provided. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An examination "is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In Ardison, the Veteran sought an increased rating for tinea pedis (athlete's foot), which was a chronic condition that would periodically worsen and spread to other parts of the veteran's body. 6 Vet. App. at 406. The United States Court of Appeals for Veterans Claims (Court) held that when a claimant's medical history reflects his condition undergoes periods of remission and recurrence, VA is required to provide a medical examination during the period of recurrence in order to provide a proper disability rating. Id. at 407. The Court found that an examination during the remission phase of the condition did not "accurately reflect the elements of the present disability." Id. (citing 38 C.F.R. § 4.2). By way of history, in September 2020, the Veteran testified before the undersigned VLJ. Regarding injuries in service, the Veteran recounted, "Well, I've had a couple slip and falls where, you know, on the hangar bay; but the first original damaging one was playing volleyball during PT, and it became completely dislocated where three of my friends had to hold me and kinda (sic) pop it back into socket." Id. at p. 10. This was in the summer of 1981, though the Veteran testified that he did not seek treatment for his shoulder until around 2005. The Veteran's representative highlighted an Service Treatment Record (STR) showing disability in service. "Yes, and I have subsequent documents after that that reflect, it's called 'Report of Medical History' that says yes, noes, (sic) where I checked yes on painful or trick shoulder is checked yes, and that's as of May of 1996." Id. at p. 12. The Board observes that in a selection of Service Treatment Records (STRs) submitted by the Veteran on March 24, 2016, a Report of Medical History from July 1992 is of record. It shows that the Veteran endorsed painful or trick shoulder or elbow. Next, the Veteran was afforded a June 2021 VA Shoulder and Arm Conditions examination with Disability Benefits Questionnaire (DBQ). The VA examiner documented a lay history, and indicated that the condition had progressed/ worsened since its onset. The Veteran reported constant pain and loss of range of motion (ROM). The VA examiner documented, "Severe flare ups with activity." The VA examiner repeated that the Veteran has severe flare ups with activity that last for hours. Nevertheless, on page 11, the VA examiner did not conduct the examination during a flare up. The VA examiner indicated that the statements from the Veteran do not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limit functional ability with flare-ups. The VA examiner indicated N/A for factors that cause functional loss, declining to select pain. This represents an internal inconsistency in the examination that served as the basis for the initial disability rating. It follows that the examination results do not contemplate severely painful flare ups. One month later, the July 2021 Rating decision granted service connection for this disability, assigning a 20 percent disability rating. As a procedural matter, the October 2021 Informal Hearing Presentation (IHP) continued listing the left shoulder issue. Importantly, the Veteran through his representative described the disability as "left shoulder pain," albeit incorrectly in the context of a service connection claim. The Board will favorably and liberally construe this as expressing disagreement with the general grant of less than the full benefit sought. In other words, the Board will construe this in part as expressing disagreement with the initial 20 percent disability rating, with an emphasis on the failure to consider shoulder pain. Indeed, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, the claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Turning to the merits of this particular appeal, the Board observes that VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). Since then, Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner's opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca. The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must "[E]licit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why [he or] she c[an] not do so." Sharp, 29 Vet. App. at 35. Here, the recent June 2021 VA examination results do not account for the Veteran's severe impairment due to pain, including due to painful flare ups. Even if this was simply overlooked, the examiner's findings are internally inconsistent. It is well-settled law that once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The grant of service connection and subsequent initial ratting must be based upon an adequate examination that fully contemplates impairment due to severe pain, including with flare ups. Accordingly, the Veteran must be afforded a new VA shoulder examination that complies with 38 C.F.R. § 4.59 and includes all necessary initial rating information in view of DeLuca and Sharp, both supra. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board incorporates its discussion from the sections above by reference. The Board observes that the Veteran is currently in receipt of a 100 percent combined disability rating from November 14, 2019, and 80 percent from August 22, 2019. He has several service-connected disabilities with compensable ratings. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. "Substantially gainful employment" is not currently defined in VA regulations. However, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 (b) as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In other words, the noneconomic component requires consideration of a Veteran's ability to secure or follow that type of employment. Here, the issue of entitlement to TDIU has been raised under Rice v. Shinseki, 22 Vet. App. 447, 453-54. (When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim.) Even though the Veteran currently has a combined 100 percent disability rating, this is not for the entire appeals period, could change in the future, and therefore does not render Rice inapplicable. The recent series of VA examinations documented occupational impairment. For example, the June 2021 VA left shoulder examination shows that the Veteran also has problems lifting, reaching, and with overhead movement that impact his ability to perform occupational tasks. The June 2021 VA examining physician also indicated there was occupational impairment due to both the left ankle disability and due to service-connected asthma. On remand, the Veteran will be afforded an opportunity to fully develop this claim that has been raised by the record. The Veteran should be sent and asked to complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. Therefore, a remand is necessary. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran's VA treatment records, and associate them with the Veteran's claims folder. 2. Send the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Verification, to be fully completed and returned to VA. The Veteran may also submit copies of any leave and earnings statements attached to these documents. 3. Please schedule the Veteran for a VA examination by an appropriate examiner to determine the current degree of severity of his service-connected left shoulder osteoarthritis (OA) instability and labral tear disability. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range-of motion testing for pain, in degrees, on both active and passive motion and in weight-bearing and non-weight bearing for the left shoulder. If any, the extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left shoulder disability alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale should be provided for all opinions expressed. 4. Adjudicate the Veteran's TDIU claim in the first instance in light of all pertinent evidence and legal authority. 5. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Bodi, 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.