Citation Nr: 21029088 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-41 223A DATE: May 12, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for right ankle medial deltoid ligament strain (right ankle strain) is remanded. Entitlement to a disability rating in excess of 10 percent for lumbar spine degenerative arthritis, spinal stenosis, status post spinal fusion (lumbar arthritis) for the period prior to November 19, 2014 and for the period from March 1, 2015 to January 25, 2018, and in excess of 20 percent thereafter, is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) for the period prior to November 19, 2014 and for the period from March 1, 2015 is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2003 to February 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference hearing in May 2021 before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the file. The Board notes this is of no prejudice to the Veteran as the Board is remanding the claims for further development, and a copy of the hearing transcript will be associated with the claims file in the ordinary course of business. 1. Entitlement to a disability rating in excess of 10 percent for right ankle strain 2. Entitlement to a disability rating in excess of 10 percent for lumbar arthritis for the period prior to November 19, 2014 and for the period from March 1, 2015 to January 25, 2018, and in excess of 20 percent thereafter While the Board regrets further delay, a remand is needed for additional development. This is necessary to ensure that there is a complete record upon which to decide the Veteran's appeal and that he is afforded every possible consideration. During the May 2021 hearing, the Veteran indicated that his right ankle strain lumbar arthritis disabilities have worsened. The Veteran reported increased right ankle impairment described as limitation of motion, tightness, popping, flare-ups, swelling, and impairment with bending. He reported increased lumbar arthritis impairment described as limitation of motion, difficulty with standing, and bilateral lower extremity radiculopathy. The Veteran also indicated that there are outstanding relevant medical records. Specifically, he indicated that treatment records from a private neurosurgeon in La Mesa, California and current VA outpatient physical therapy records are missing from his file. On remand, any missing relevant private and VA medical records must be obtained and associated with the claims file. 3. Entitlement to a TDIU for the period prior to November 19, 2014 and for the period from March 1, 2015 The Veteran is currently service connected for the following disabilities: post-traumatic stress disorder (PTSD), rated 100 percent disabling from December 12, 2017; lumbar arthritis, rated 10 percent disabling from February 12, 2007, 100 percent disabling from November 19, 2014, 10 percent disabling from March 1, 2015, and 20 percent disabling from January 25, 2018; right ankle strain, rated 10 percent disabling from February 12, 2007; left knee condition, rated 10 percent disabling from January 25, 2018, left second toe valgus deformity, rated as noncompensable from February 12, 2007; left-ear hearing loss, rated as noncompensable from February 12, 2007; residual scar on back, rated as noncompensable from November 19, 2014; right-foot plantar fasciitis, rated as 10 percent disabling from February 12, 2007 and as noncompensable from January 22, 2018; and left-foot plantar fasciitis, rated as 10 percent disabling from February 12, 2007 and as noncompensable from January 22, 2018. These ratings combine to overall ratings of 40 percent from February 12, 2007, 100 percent from November 19, 2014, 40 percent from March 1, 2015, and 100 percent from December 12, 2017. A TDIU rating is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). A 100 percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, even though no additional disability may be paid when a disability rating of 100 percent is already in effect, a separate award of TDIU based on a single service-connected disability may form the basis for a claim for special monthly compensation (SMC). See Bradley v. Peake, 22 Vet. App. 280 (2008), resulting in revocation of VAOPGCPREC 6-99, which held that TDIU could not be considered if a claimant already had a 100 percent rating for one or more disabilities. As noted above, the Veteran has a 100 percent rating for PTSD, effective December 12, 2017. It is noted that an award of TDIU after December 12, 2017 based on PTSD would result in duplicative payment. However, the award of a total schedular rating for PTSD from December 12, 2017 does not moot the issue of entitlement to TDIU, as TDIU may still be assigned on the basis of any single remaining service-connected disability. See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 249-251 (2010); Bradley v Peake, 22 Vet. App. 280, 292-93 (2008). The record shows that the Veteran reported that he quit his job as a federal guard due to back pain. See December 2013 VA PTSD Examination Report. Thus, because the Veteran was in receipt of a temporary total rating for convalescence from November 19, 2014 to March 1, 2015 for a spinal fusion, the issue of TDIU is moot during this specific time frame. Accordingly, TDIU should be considered prior to November 19, 2014 and for the period from March 1, 2015 to December 12, 2017. Additionally, the issue of TDIU from December 12, 2017 remains in appellate status, but only for the limited purpose of determining whether the Veteran is entitled to special monthly compensation under 38 U.S.C. § 1114(s). The Board herein remands the Veteran's increased rating claims for his lumbar arthritis and right ankle strain. Assignment of ratings for those disabilities will impact the Veteran's eligibility for a schedular TDIU. The claim for a TDIU is, therefore, procedurally intertwined with those issues. As such, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); cf. Todd v. McDonald, 27 Vet. App. 79 (2014). On remand, he should be afforded the opportunity to complete the appropriate forms to support a claim for TDIU, and to submit additional relevant information. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any relevant private treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit copies. 3. After the above development has been completed to the extent possible, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected right ankle strain. All indicated tests and studies should be undertaken. The record, including a complete copy of this Remand, must be made available for review in connection with the examination. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's right ankle strain. (B) The examiner should record the range of motion of the right ankle observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case s/he should clearly explain why that is so. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his right ankle, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. If the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. In providing these opinions, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing and must answer whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. (E) To the extent possible, the examiner should identify any symptoms and functional impairments and discuss the effect on any occupational functioning and activities of daily living. 4. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected lumbar disability. All indicated tests and studies should be undertaken. The record, including a complete copy of this Remand, must be made available for review in connection with the examination. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's lumbar disability. (B) The examiner should record the range of motion of the lumbar spine observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his back, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. If the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. In providing these opinions, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing and must answer whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. (E) The examiner is requested to indicate whether intervertebral disc syndrome related to the Veteran's service-connected back disability is present. If so, the examiner should provide the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. (F) To the extent possible, the examiner should identify any symptoms and functional impairments and discuss the effect on any occupational functioning and activities of daily living. 5. Provide the Veteran with a VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of the TDIU claim. If the Veteran provides a completed VA Form 21-8940, the Agency of Original Jurisdiction should complete any additional development prompted by the information on the completed form. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.