Citation Nr: 21007429 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-24 182 DATE: February 9, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent prior to November 24, 2017, for residuals of fracture to the second, third and fourth toes of the left foot is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1965 to August 1967. In an October 2019 decision, the Board partially denied the Veteran’s increased rating claim. He appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court vacated the claim and remanded that portion of the Board decision that denied a rating in excess of 10 percent prior to November 2017 for the left foot disability to the Board for development consistent with the parties’ Joint Motion for Partial Remand (Joint Motion). In the January 2020 Joint Motion, the parties agreed that remand was required to provide the Veteran with a new VA examination to evaluate the severity of his left foot disability in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). The November 2017 VA examination in does not contain either passive range of motion measurements or weight-bearing testing. Remand is needed for a new VA examination with more thorough findings in compliance with Correia. The parties also noted that remand was warranted for the Board to specifically consider whether the issue of entitlement to a TDIU was reasonably raised by the Veteran. Subsequently, the Veteran submitted a statement in which he specifically raised the issue. As such, remand is needed to develop his TDIU claim. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to the present. 2. After completion of the above, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to obtain determine the severity of his service-connected residuals of fracture to the second, third and fourth toes of the left foot, to include specific findings as to the severity of the disability for the period prior to November 24, 2017. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). 3. Develop and adjudicate the issue of entitlement to TDIU as an element of the Veteran’s increased rating claim for his service-connected left foot disability in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.