Citation Nr: 21011490 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-13 731 DATE: March 2, 2021 REMANDED Entitlement to a compensable rating for service-connected left tibial stress fracture is remanded. Entitlement to a rating in excess of 10 percent for service-connected peroneal tendonitis, left foot is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1983 to May 1987. This appeal was previously before the Board in December 2018, at which time it included the issue of entitlement to a rating in excess of 10 percent for service-connected degenerative arthritis, cervical spine. Following an April 2019 VA examination, the agency of original jurisdiction (AOJ) issued a rating decision that awarded a 20 percent disability rating to the Veteran’s degenerative arthritis, cervical spine, effective April 23, 2019. The AOJ also readjudicated her claim in a September 2020 Supplement Statement of the Case (SSOC). In October 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, in which she listed the issue of entitlement to a higher rating for her service-connected degenerative arthritis, cervical spine, thereby opting that issue into the modernized review system, also known as the Appeals Modernization Act (AMA) from the September 2020 SSOC. In January 2021, the AOJ issued the supplemental claim decision in which it denied her claim for a higher rating for her service-connected degenerative arthritis, cervical spine. In February 2021, she filed another a VA Form 20-0995, Decision Review Request: Supplemental Claim, in which she listed the issue of entitlement to a higher rating for her service-connected degenerative arthritis, cervical spine. Given the above, the Board finds the Veteran has opted the issue of entitlement to a higher rating for her service-connected degenerative arthritis, cervical spine into the AMA, and it is no longer a part of this current legacy appeal stream. With regard to the issues remaining in this appeal stream, the most recent VA examinations assessing the nature and severity of the Veteran’s service-connected left tibial stress fracture and peroneal tendonitis, left foot occurred in April 2019. Subsequently, in a statement received in February 2021, the Veteran stated that all of her conditions were worsening, and that her quality of life had been damaged due to mobility issues and pain. Given the foregoing, the Board finds that more contemporaneous examinations are needed to fully and fairly evaluate the Veteran’s claims for an increased rating for her service-connected left tibial stress fracture and peroneal tendonitis, left foot. See Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). As noted in the December 2018 remand, the Veteran’s claim for a TDIU is inextricably intertwined with her other claim on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Board will defer consideration of entitlement to a TDIU issue at this time. On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent evidence. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. Give the Veteran an additional opportunity to submit or identify any outstanding evidence pertinent to her claims on appeal. The AOJ should then attempt to obtain those records if she provides the appropriate authorization. 3. Schedule the Veteran for an appropriate VA examination by a competent medical professional to determine the current nature and severity of her service-connected left tibial stress fracture and peroneal tendonitis, left foot. The entire record must be made available to and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of her service-connected left tibial stress fracture and peroneal tendonitis, left foot. Any indicated evaluations, studies, and tests should be conducted. The examiner must address each of the following: a) The examiner should describe all symptoms associated with the Veteran’s service-connected left tibial stress fracture and peroneal tendonitis, left foot. b) The examiner should conduct range of motion testing (expressed in degrees), and test for pain in active motion, passive motion, weight-bearing, and nonweight-bearing. If pain is noted on range-of-motion testing, the examiner must specify at what point the Veteran’s loss of range of motion was due to pain and at what point the evidence of pain ended. c) The examiner should render specific findings as to the additional limitation of motion due to pain on motion, weakness, excess fatigability, or incoordination, as well as any additional functional effects. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. d) The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use. Record her reports and opine whether the reports are consistent with the disability found on the examination. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to flare ups and ask her to describe the additional functional loss, if any, she suffers during flare-ups or following repeated use. The examiner should then estimate the functional loss, including loss of range of motion, due to flare-ups or following repeated use based on all the evidence of record—including the Veteran’s lay statements. 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 her 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. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 4. Thereafter, and after any further development deemed necessary, the appeal should be readjudicated. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.