Citation Nr: 21076972 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-14 979 DATE: December 28, 2021 REMANDED Entitlement to service connection for a bilateral ankle disorder, to include Achilles' tendonitis is remanded. Entitlement to a rating of total disability based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1980 to July 1983. The issue on appeal was previously denied by the Board in April 2020. The Veteran appealed this decision to the Court of Appeals for Veterans Claims which, in a February 2021 Order, vacated the Board's decision and remanded the issue for additional development and readjudication. 1. Entitlement to service connection for a bilateral ankle disorder, to include Achilles' tendonitis is remanded. In his December 1999 application for service connection, the Veteran reported a disability pertaining to his feet. As he later testified, the Veteran phrased it this way because he did not know that different anatomies within the foot could receive service connection separate from one another. As his claim developed further, medical records dated March 2016, October 2016, and December 2016, specified that the Veteran suffers from disabilities such as peroneus brevis split tear and common peroneal tenosynovitis" and "extensive abnormalities of the lateral ligamentous structures." However, the nexus examinations provided thus far are inconsistent. For instance, the March 2011 VA nexus opinion addresses causation, but not aggravation. Accordingly, the examiner should identify each disability affecting each ankle. Then, the examiner should determine whether there is a nexus between each ankle disability afflicting the Veteran, to include Achilles' tendinitis, and the Veteran's service, to include the joint pain reported in his separation examination report. 2. Entitlement to a rating of total disability based on individual unemployability is remanded. According to the evidence of record, the Veteran was denied entitlement to TDIU, most recently in the vacated and remanded April 2020 BVA decision. Since then, the Veteran was granted service connection for a right shoulder disability, and receives a 20 percent rating from April 9, 2018. Moreover, development after this remand may lead to further service-connection grants and information about the Veteran's employability. Obviously, the grant of service connection for his dominant shoulder, as well as both ankles, would represent a material change in the Veteran's disability picture, and it would be prejudicial to the Veteran to adjudicate this appeal in the first instance, thereby depriving the Veteran the opportunity to present additional evidence and argument in view of his current disability picture. Also, recent development from the Court of Appeals for Veterans Claims has held that the pursuant to Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the proper standard for the initial decision of whether to refer the issue of entitlement to a TDIU to the Director of Compensation under 38 C.F.R. § 4.16(b) is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Snider v. McDonough, No 19-7607, (Vet. App., Nov. 19, 2021). Therefore, based on the outcome of the above development, consideration must be given to the recent changes in the interpretation for 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Add all outstanding VA treatment records not currently associated with the Veteran's claims file. If the Veteran has obtained treatment outside of VA, the Veteran should be afforded an opportunity to add any applicable records. Moreover, if the Veteran has any additional evidence related to his employability that is not of record, he should be afforded an appropriate period of time to submit such evidence. 2. Schedule the Veteran for a VA examination for his bilateral ankle disability. Prior to the examination, the examiner must review the claims file. The examiner should identify each diagnosis affecting each ankle. Then, the examiner is asked to provide a response to each of the following: a) Is the disability at least as likely as not related to service, including the reports of lower body joint pain cited in his separation examination report? Provide a rationale to support the opinion(s). b) Is the disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected plantar fasciitis? 3. Readjudicate the claims on appeal including the issue of entitlement to TDIU. If after the above development is completed, and the Veteran does not meet the ratings necessary to meet the requirements on a schedular basis, the RO must consider whether there is a reasonable possibility that TDIU may be warranted on an extraschedular basis. If so, the RO must forward the claim to the Undersecretary for Benefits in order to obtain an opinion on whether TDIU is warranted on an extraschedular basis. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia