Citation Nr: 21026739 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-22 611 DATE: May 3, 2021 REMANDED Entitlement to a rating in excess of 10 percent for residuals of a right ankle fracture is remanded. Entitlement to a compensable rating for surgical scars of the right ankle is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from February 1972 to March 1975. These matters come to the Board on appeal from a March 2017 Regional Office (RO) decision. The issues of entitlement to higher ratings for an ankle disability and associated surgical scar were denied by the Board in a September 2019 decision. The Veteran appealed the denials to the United States Court of Appeals for Veteran's (Court), and a Joint Motion for Remand (Joint Motion) was granted in November 2020, and the issues were remanded to the Board for further action. The Joint Motion directed the Board to address whether the issue of entitlement to a TDIU had been reasonably raised by the record. The issue of entitlement to a TDIU has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) as part and parcel to the Veteran's claim for increase. Specifically, as noted in the Joint Motion, the Veteran stated that he had been unemployed for two years due to multiple medical issues, including difficulty with balance at a February 2012 VA examination. The Veteran attributed difficulty with balance to his ankle disability. Thus, the issue of entitlement to a TDIU is reasonably raised by the record is for appellate consideration. 1. Entitlement to a rating in excess of 10 percent for residuals of a right ankle fracture is remanded. The Joint Motion found that the February 2017 VA examination was inadequate, and that a new examination was necessary. Specifically, the examination failed to comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). At the February 2017 VA examination, the examiner failed to provide range of motion measurements for passive motion and with non-weight bearing. Further, the examiner stated that he was unable to opine as to whether pain, weakness, fatigability, or incoordination limited functional ability during flare-ups without resorting to speculation because the Veteran was not examined during a flare-up. The examiner did not explain if such inability was due to limitations of knowledge in the medical community at large or her own limitations as an examiner. Thus, the issue must be remanded for a new examination that complies with the above. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to a compensable rating for surgical scars of the right ankle is remanded. 3. Entitlement to a TDIU is remanded. With regard to the Veteran's ankle scars, the Joint Motion indicated that the prior Board denial failed to consider lay statements from the Veteran attesting to painful scars. Given that a new examination is warranted to assess the functional limitations of the Veteran's ankle, the resulting examination is likely to yield information that is relevant to the Veteran's ankle scar disability (i.e. is the Veteran's ankle function limited by his scar). Thus, the Board finds the issue inextricably intertwined with the matter remanded herein, and adjudication should be deferred. The same applies to the issue of entitlement to a TDIU, as the Veteran has stated that his ankle causes a lack of balance, impairing his ability to work. Harris v. Derwinski, 1 Vet. App. 180 (1991). The RO has not yet adjudicated the issue of entitlement to a TDIU, and should do so on remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with the to determine the severity of the Veteran's service-connected right ankle disability. The entire claims file must be made available to and reviewed by the examiner. The examiner must specifically note range of motion of the ankle, in terms of degrees, to include with pain, on both passive and active range of motion, and with weight bearing and non-weight bearing conditions. The examiner must also indicate whether there would be functional impairment, in terms of degrees of range of motion, due to such factors such as pain, weakness, fatigability, and incoordination or painful motion due to repetitive motions (including over time) or due to flare-ups. Although the examiner may not have findings based on direct observation of the Veteran during a flare-up and/or after repetitive use over time, the examiner should estimate any additional functional impairment based on the evidence of record, including the Veteran's lay descriptions of severity, frequency, duration, and/or functional loss in the manifestations in formulating the opinion. The examiner may elicit such information from the Veteran. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. If it is not possible to provide an opinion regarding flare-ups, symptoms, or functional impairment, including on repeated use and repetitive use over time, 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). 2. Thereafter, after undertaking any other development deemed appropriate, readjudicate the issues on appeal, to include entitlement to a higher rating for ankle scars and TDIU. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and return the case to the Board after time to respond has been afforded. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.