Citation Nr: 21006870 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 16-19 077 DATE: February 5, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a right ankle disability is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from November 1987 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a March 2019 Board Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In August 2019, the Board, in pertinent part, denied entitlement to an initial rating in excess of 10 percent for a right ankle disability. The Veteran appealed this denied claim. In September 2020, the United States Court of Appeals for Veterans Claims (Court) granted a September 2020 Joint Motion for Remand (JMR) by counsel for the Veteran and VA, vacated the Board's August 2019 decision as to the issue of entitlement to an initial rating in excess of 10 percent for a right ankle disability, and remanded this matter to the Board for development consistent with the JMR. The August 2019 Board decision also remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU) for additional development. In a July 2020 rating decision, the RO granted a TDIU, effective March 13, 2019, the day after the Veteran’s last day of employment. See July 2020 VA Form 27-0820, Report of General Information. Nevertheless, the Board considered whether an inferred claim for a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised for the period prior to March 13, 2019. Although the Veteran reported having some occupational impairment related to his service-connected disabilities during the period on appeal prior to March 13, 2019, the record does not indicate that these issues resulted in unemployment during that period. Importantly, neither the Veteran nor his representative have indicated that the Veteran was unable to maintain substantially gainful employment due to his service-connected disabilities during the period prior to March 13, 2019. The Board therefore finds that Rice is inapplicable, and a TDIU request for the period prior to March 13, 2019 has not been inferred, and the issue of entitlement to a TDIU for the period prior to March 13, 2019, is not part of the present appeal. Entitlement to an initial rating in excess of 10 percent for a right ankle disability is remanded. As noted above, the Court granted the September 2020 JMR, finding that the Board erred insofar as it relied upon March 2016 and October 2016 VA examination reports that did not comply with the requirements set forth by the Court in Sharp v. Shinseki, 29 Vet. App. 26, 34 (2017). Specifically, the parties agreed in the JMR that remand was warranted for the Board to provide the Veteran with a new medical examination adequately addressing whether there was additional functional loss during flare-ups. Pursuant to the JMR, the Board finds that a remand is necessary to obtain an adequate VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his right ankle disability. The claims folder must be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. (a) With regard to flare-ups, the examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. (b) Comment on the extent of any ankle stability. (Continued on the next page)   A complete rationale should be provided. 2. Then, readjudicate the issue on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, 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.