Citation Nr: 21032194 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-34 812 DATE: May 26, 2021 REMANDED 1. Entitlement to a compensable rating for nondisplaced transverse fracture base of the left 5th metatarsal is remanded. 2. Entitlement to service connection for a left ankle disability is remanded. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability on an extraschedular basis is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1977 to April 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision. In April 2021, a virtual hearing was held before the undersigned. 1. Entitlement to a compensable rating for nondisplaced transverse fracture base of the left 5th metatarsal. During the April 2021 Board hearing, the Veteran testified that she cannot put weight on her 5th left metatarsal. She has not been afforded a contemporaneous VA examination to assess the nature and severity of her service-connected fracture of 5th metatarsal of the left foot. As the evidence suggests that the disability may have worsened, a remand to determine its current severity is required. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to service connection for a left ankle disability. The Veteran asserts that she has a left ankle disability that is related to injury in service. Specifically, she asserts her left ankle disability is secondary to her service-connected nondisplaced transverse fracture base of the left 5th metatarsal. A May 1980 service treatment record notes a complaint of, and treatment for, left ankle inversion injury sustained playing ball. She had soft tissue swelling and a tender ankle. X-ray suggested 5th metatarsal base fracture and revealed nondisplaced transverse facture base of 5th with ankle mortise within normal limits. Post-service, the Veteran underwent VA examination in February 2016. Left ankle enthesopathy was diagnosed. The examiner opined the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained, [The] Veteran has not sought treatment for left ankle/foot injury since 1980 after she injured ankle and fractured base of left 5th metatarsal. Her follow up [examination] after injury with podiatry showed resolution of symptoms. Current x-rays [show] a possible bone spur [versus] loose body to talus of left foot, which is not consistent with any residuals from injury in the military. The diagnosis of [left ankle condition] is less likely than not incurred in or caused by (the) [inversion injury left ankle] during service. The examiner's opinion does not address the Veteran's theory of secondary service connection. The Veteran has also testified that her in-service left ankle sprain was more severe than assessed when she was in service and did not resolve. Another examination to obtain an adequate medical advisory opinion regarding the etiology of the Veteran's left ankle disability is necessary. 3. Entitlement to a TDIU due to service-connected disability on an extraschedular basis. When evidence of unemployability is submitted during the course of an appeal of a rating assigned for a disability, a claim for entitlement to a TDIU rating is considered part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). At the April 2021 Board hearing, the Veteran (through her representative) raised the issue of entitlement to a TDIU on an extraschedular basis during the period on appeal. Accordingly, the matter is part of the increased rating claim on appeal, and must be remanded for appropriate action/adjudication. During the April 2021 Board hearing, the Veteran also testified to being in receipt of Social Security Administration (SSA) disability benefits. Her claims file does not include any SSA records (or reflect that they were sought). Any existing SSA records are constructively of the record, and medical records considered in connection with any SSA disability determination may be pertinent evidence, and must be sought. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records for the Veteran's service-connected fracture of 5th metatarsal of the left foot that are not currently of record. 2. Obtain for the record from SSA a copy of their determination on the Veteran's claim for SSA disability benefits and the complete medical records considered in connection with such determination. If such records are unavailable, it should be so noted in the record with explanation (e.g., the records were lost or destroyed). 3. After the above is completed to the extent possible, arranged for the Veteran be examined by an appropriate clinician to assess the current severity of her service-connected fracture of left 5th metatarsal disability. Provide the claims file, including a copy of this remand, to the examiner for review. The examiner should describe in detail all symptoms found (and all related functional limitations), specifically addressing her statements and hearing testimony regarding the nature and severity of the manifestations and impairment. For purposes of this opinion, the examiner is requested to attempt to the extent possible to distinguish symptoms and impairment associated with the service-connected nondisplaced transverse fracture base of the left 5th metatarsal from the symptoms and impairment due solely to any co-existing and non-service-connected left foot condition (e.g., tendonitis and flat feet). Please note if it is not possible to attribute the symptoms to each disability separately or if any additional diagnosis is attributed to the service-connected nondisplaced transverse fracture base of the left 5th metatarsal. The examiner should discuss the extent of functional impairment caused by the service-connected fracture of left 5th metatarsal, to include in an occupational setting and in ordinary, daily activities. All opinions must include a complete explanation of rationale . 4. After the April 2021 Board hearing transcript is associated with the Veteran's claims file, arrange for an orthopedic examination of the Veteran to determine the likely etiology of her claimed left ankle disability. Her claims file must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed, and all pertinent findings should be reported in detail. The examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) each left ankle disability entity shown by the record. (b) Identify the likely etiology for each diagnosed left ankle disability entity diagnosed. Specifically, is it at least as likely as not (a 50 % or better probability) that the disability (i) is related directly to the Veteran's service (was incurred therein), to include as due to left ankle inversion injury sustained playing ball or (ii) was caused or aggravated [the opinion must address aggravation] by her service-connected nondisplaced transverse fracture base of the left 5th metatarsal disability? (c) If a diagnosed left ankle disability is found to not be directly related to the Veteran's service/injury therein, or to have been caused or aggravated by a service-connected disability, identify the etiology for the left ankle disability that is considered to be more likely, and explain why that is so. All opinions must include complete explanation of the rationale. In furnishing the requested opinions and rationale, the consulting provider must acknowledge the April 2021 Board hearing testimony and address the Veteran's lay statements, describing her theories of direct and secondary service connection. Citation to supporting factual data and medical principles would be helpful. 5. After the above is completed, arrange for any further development indicated by the record (to include, if deemed appropriate, referral to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b), and adjudicate the matter of entitlement to a TDIU rating (raised at the Board hearing). If a referral is made, include a full statement outlining the medical evidence and all other factors bearing on the matter. If referral is deemed not warranted, explain for the record why that is so. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.