Citation Nr: 21027860 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 09-22 570 DATE: May 7, 2021 REMANDED Entitlement to a rating in excess of 20 percent for status-post right ankle open reduction and internal fixation surgery is remanded. Entitlement to a rating in excess of 20 percent for residuals of a left ankle sprain 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 January 1976 to January 1979. The Veteran appealed a November 2008 rating decision by the Agency of Original Jurisdiction (AOJ). In May 2017, the Board of Veterans' Appeals (Board) remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. However, the Board finds that further evidentiary development is necessary. 1. Ankles The Veteran's spouse noted in a March 2021 statement that she witnessed a noticeable decline in the Veteran's mobility, difficulty with daily activities, and a definite progression in his condition. The last VA examination was conducted in November 2017. Overall, the evidence suggests that the Veteran's ankle disabilities have worsened since his last VA examination. Where the disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). On remand, the AOJ should afford the Veteran a new VA examination to determine the current severity of his right and left ankle disabilities. Additionally, the new examination should adequately address flare-ups. In Sharp v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "estimate the [Veteran's] functional loss due to flares based on all the evidence of record (including the [Veteran's] lay information) or explain why [he or she] could not do so." 29 Vet. App. 26, 35 (2019). The November 2017 VA examiner noted flare-ups that occur three times a week, but then marked that the Veteran did not have flare-ups. The Veteran stated in March 2021 correspondence that he did indeed have flare-ups. As such, the November 2017 VA examination is inadequate for rating purposes. 2. TDIU The Veteran's TDIU claim is premised in part on the severity of his service-connected ankle disabilities. Therefore, the issue of TDIU is inextricably intertwined with those issues. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his ankle disabilities 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. 2. Thereafter, schedule the Veteran for an examination of the current severity of his right and left ankle disabilities. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). 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. The examiner should identify any symptoms and functional impairments due to the Veteran's condition and discuss the effect of the Veteran's condition 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 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. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.