Citation Nr: 21023454 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-53 636 DATE: April 20, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for right foot degenerative arthritis status post fusion with remote history of Lisfranc fracture with ORIF from March 11, 2015, to January 30, 2019, and from May 1, 2019, is remanded. Entitlement to an initial disability rating in excess of 20 percent for right ankle distal fibula fracture, status post ORIF, degenerative arthritis associated with right foot degenerative arthritis status post fusion with remote history of Lisfranc fracture with ORIF effective March 11, 2015, is remanded. Entitlement to an initial compensable disability rating for residual scars, right lateral ankle and right mid-foot effective March 11, 2015, is remanded. Entitlement to an initial disability rating in excess of 10 percent for painful scar right lower extremity effective March 11, 2015, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected conditions (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to April 1992. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Denver, Colorado. By way of background, the Veteran timely appealed these claims in a September 2015 Notice of Disagreement (NOD). The RO then issued an October 2017 Statement of the Case (SOC) addressing these claims as well as service connection for bilateral hearing loss which was denied in the August 2015 rating decision but not specifically appealed in the Veteran’s September 2015 NOD. The Veteran then completed a VA Form 9 appealing all of the issues addressed in the October 2017 SOC to the Board requesting a hearing. During the pendency of the Veteran’s appeal, the RO granted service connection for bilateral hearing loss in an August 2019 rating decision. The RO’s award of service connection for bilateral hearing loss constitutes a full grant of the service connection benefits sought; thus, the question of whether this issue is properly before the Board is moot as the claim has been granted. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Veteran perfected his appeal to the Board of the remaining issues from the September 2015 NOD requesting a hearing which occurred in December 2020. A hearing transcript is of record. 1. Entitlement to an increased rating in excess of 10 percent for right foot degenerative arthritis status post fusion with remote history of Lisfranc fracture with ORIF from March 11, 2015, to January 30, 2019, and from May 1, 2019, is remanded. 2. Entitlement to an initial disability rating in excess of 20 percent for right ankle distal fibula fracture, status post ORIF, degenerative arthritis associated with right foot degenerative arthritis status post fusion with remote history of Lisfranc fracture with ORIF effective March 11, 2015, is remanded. The Veteran contends he experiences worsened symptoms and residuals of his right foot and right ankle disabilities entitling him to a higher disability rating. The Board finds the evidence is insufficient to resolve the Veteran’s claims. During the hearing, the Veteran testified that he experiences worsened right foot and ankle symptoms and residuals. The Veteran was last afforded a VA examination to determine the severity of his right foot and ankle disabilities in July 2019. The Veteran testified, however, that the examination does not reflect the Veteran’s symptom severity. Specifically, he testified that he has right foot drop that requires use of a spring-loaded brace as he has very little sensation in the right foot and it is “very, very weak.” Even with the brace, the Veteran stated that he falls on uneven ground. The Veteran testified that he experiences numbness and swelling. Additionally, the Veteran testified that he underwent right foot and ankle surgery which included attempted tendon and muscle repair and replacement, the extent of which is unknown based upon review of the most recent VA examination. Indeed, the Veteran’s most recent foot conditions disability benefits questionnaire in February 2021 for the left foot reflected right foot symptom worsening as well. The entire disability picture and severity of the Veteran’s right foot and ankle disabilities, however, remains unclear from the record. Thus, remand is necessary to afford the Veteran a contemporaneous VA examination to determine the current severity of his right foot and ankle symptom severity and residuals including muscle injuries and neurological abnormalities. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Consequently, these claims are remanded to afford the Veteran another VA examination to determine the severity of his right foot degenerative arthritis and right ankle distal fibula fracture as well as the severity of any residuals. 3. Entitlement to an initial compensable disability rating for residual scars, right lateral ankle and right mid-foot effective March 11, 2015, is remanded. 4. Entitlement to an initial disability rating in excess of 10 percent for painful scar right lower extremity effective March 11, 2015, is remanded. The Veteran contends he experiences worsened symptoms from scars on the right lower extremity including the ankle and foot entitling him to a higher disability rating. The Board finds the evidence is insufficient to resolve the Veteran’s claims. During the hearing, the Veteran testified that he has multiple scars on the right lower extremity that produce pain and have limited sensation. He stated that he uses two prescription topical medications for treatment including one that is applied multiple times per day for the pain. The Veteran was last afforded a VA examination in July 2019 to determine the severity of his scars. The examiner, however, attributed pain to only one of the scars and did not indicate reliance on medication for treatment or loss of sensation. Thus, remand is necessary to afford the Veteran a contemporaneous VA examination to determine the current severity of his symptoms. See Snuffer, 10 Vet. App. 400. Based on the above, these claims are remanded to afford the Veteran another VA examination to determine the severity of his scars. 5. Entitlement to TDIU is remanded. The Veteran contends he is unable to obtain and maintain employment due to his right foot and ankle disabilities. The Board finds the issue of TDIU is reasonably raised by the record including through the Veteran’s hearing testimony. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Here, the Board finds the Veteran raised the issue of entitlement to a TDIU rating when he stated that he is unable to maintain his previous employment in the energy industry because of his right foot instability and the inability to climb ladders, crawl over equipment, or run in case of emergency. Additionally, the Veteran testified that he could no longer work in his most recent position due to swelling in the right foot and ankle that made it painful to walk, which was necessary to complete his job responsibilities. Thus, the Board infers a TDIU claim from the record; and as such, takes jurisdiction over the issue. Rice, 22 Vet. App. 447. Based upon review of the record, however, the Veteran’s current employability status is not clear, and development of this claim needs to be completed including notifying the Veteran of the evidence required to substantiate a TDIU claim and solicitation of employment and payment history to determine whether he is eligible for TDIU. Accordingly, this issue is remanded for further development. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination before an appropriate examiner to determine the severity of the Veteran’s right foot degenerative arthritis; right ankle distal fibula fracture; residual scars, right lateral ankle and right mid-foot; and painful scar right lower extremity to include any and all residuals. The examiner shall be provided the entire claims file and this remand for review. The examiner shall provide a full description of the Veteran’s disabilities and residuals and discuss all signs and symptoms necessary for evaluating the Veteran’s disabilities and residuals under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner shall identify any functional, social, and occupational effects or impairments due to his right foot and ankle disabilities. The examiner is directed to consider the Veteran’s lay statements of symptom worsening. Regarding the Veteran’s right ankle and foot disabilities, the examiner is directed to address and consider the Veteran’s lay statements of right foot weakness, numbness, pain and instability; right foot drop with reliance on spring-loaded orthotics; and muscle injuries following attempted operative repair. In order to understand the extent of the Veteran’s disability picture and all residuals related thereto, the examiner shall complete any additional disability benefits questionnaires deemed necessary including any neurological abnormalities and muscle injuries. The examiner is directed to assess the entire disability picture presented by the Veteran’s right foot and ankle disabilities including any residuals related thereto. Regarding the Veteran’s scar disabilities, residual scars, right lateral ankle and right mid-foot and painful scar right lower extremity to include any and all residuals, the examiner shall consider and address the Veteran’s lay statements that he has multiple scars that are painful and numb and uses multiple prescription medications daily for pain. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Send the Veteran a notice letter, pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), which advises him of the information needed to substantiate a claim for TDIU. In addition, ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information. (Continued on the next page)   3. After the above development, and any other development deemed necessary, readjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, Associate 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.