Citation Nr: 21027577 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-00 954 DATE: May 6, 2021 ORDER An increased rating of 30 percent (but no higher) for a fracture of the right fifth metatarsal, effective November 11, 2013, is granted. REMANDED An increased rating greater than 20 percent for a left elbow dislocation with hypertrophic spur is remanded. A total disability rating based on individual employability (TDIU) is remanded. FINDING OF FACT Affording the Veteran the benefit of doubt, the evidence is evenly balanced for and against (in "relative equipoise") finding that his symptoms associated with his right foot fifth metatarsal fracture more closely approximate a 30 percent rating because his symptoms are between moderately severe and severe. His symptoms affect his ability to stand or walk for long periods of time (limited to no more than 100 yards on a sunny day), interfere with his ability to sleep, and cause tingling sensations and pain during flare ups, which contributes to the Veteran's functional impairment and his ability to maintain substantially gainful employment. (See December 2018 Board hearing; October 2020 VA examination). This is the highest schedular rating for the Veteran's condition as the record reflects the Veteran has not lost the use of his right foot as a result of his service-connected disability. Id. CONCLUSION OF LAW The criteria have been met for an increased rating of 30 percent (but no higher) for a fracture of the right fifth metatarsal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code (Code) 5283. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served from April 1976 to April 1981. This matter is before the Board of Veterans Appeals (Board) on appeal from April 2014 and October 2015 rating decisions by the Agency of Original Jurisdiction (AOJ). A hearing was held before the undersigned in December 2018; a transcript of which has been associated with the record. In June 2019, the Board remanded the Veteran's claims for further development. The Board notes that in the June 2019 remand, the issue was listed as an appeal for a rating greater than 30 percent, but the record reveals the Veteran has only been rated at 10 percent since November 20, 2013. The record reflects that the Veteran's service-connected disabilities may have prevented him from working during the appeal period. See December 2018 Board hearing. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue. An increased rating of 30 percent (but no higher) for a fracture of the right fifth metatarsal, effective November 11, 2013, is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal for an increased rating for fracture of the right fifth metatarsal, on the merits, is granted. REASONS FOR REMAND 1. An increased rating greater than 20 percent for a left elbow dislocation with hypertrophic spur is remanded. Despite the regrettable delay, another remand is required to seek clarification in the October 2020 VA examination. The examiner noted limitation in forearm supination and pronation from 0-45 degrees; however, later in the examination, the examiner indicated there was no limitation in supination or pronation and failed to ascertain if the Veteran has any of the conditions listed within the diagnostic code, which would allow the Board to fully adjudicate the claim. Therefore, a remand is required in order to obtain a new VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (whenever VA provides an examination or obtains a medical opinion, it must ensure that the examination or opinion is adequate). 2. A total disability rating based on individual employability (TDIU) is remanded. The Board notes that the AOJ requested assistance from the Veteran in developing his potential claim for TDIU, and the Veteran failed to respond. See June 2020 Development Letter. However, the AOJ also obtained an October 2020 VA examination on the issue of TDIU. The examiner indicated that the Veteran could perform sedentary work but did not address whether the Veteran could secure and maintain substantially gainful employment given the Veteran's employment and educational experience. Further, although entitlement to TDIU was denied in an August 2020 rating decision, the denial did not encompass the entire period on appeal. As a result, the issue remains before the Board. See Harper v. Wilkie, 30 Vet. App. 356 (2018); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Obtain any outstanding private and VA treatment records relevant to treatment the Veteran received for his left elbow dislocation with hypertrophic spur that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented 3. The AOJ should again provide the Veteran appropriate notice of VA's duties to notify and assist regarding how to substantiate a claim for entitlement to TDIU, to include providing him a VA Form 21-8940. The Veteran should assist in the matter by providing the requested information. 4. After the above, arrange for a VA examination of the Veteran to assess the Veteran's total disability picture as it relates to his ability to obtain and maintain substantially gainful employment based on all of his service-connected disabilities. (A TDIU examination). A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 5. Schedule the Veteran for an examination or examination(s) with a qualified clinician to determine the current severity of his service-connected left elbow dislocation with hypertrophic spur. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The clinician must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The clinician 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. To the extent possible, the clinician should identify any symptoms and functional impairments due to the left elbow dislocation with hypertrophic spur and discuss the effect on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the clinician 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 clinician (does not have the knowledge or training). Specifically, as it relates to section VI of the November 2019 VA examination, if the examiner notes limitation in range of motion (impairment) for supination and pronation of the forearm, section VI should be completed. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.