Citation Nr: 21032834 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 18-13 538 DATE: May 28, 2021 REMANDED Entitlement to a rating in excess of 10 percent for left ankle with left achilles tendonitis with calcification from January 1, 2020 is remanded. Entitlement to individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from January 1965 to January 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Please note that a separate appeal for service connection for a nasal condition is also before the Board but is currently docketed for a hearing with a Veterans Law Judge. The Board cannot decide an appeal until the requested hearing has been completed. The October 2019 Board decision granted an initial rating in excess of 20 percent, but no higher, prior to August 20, 2019 for left ankle, remanded the claim to entitlement to a rating in excess of 10 percent for left ankle since November 1, 2019, and remanded the claim to entitlement to TDIU. In a June 2020 rating decision, the RO assigned a 10 percent evaluation from January 1, 2020, effective after the temporary 100 percent evaluation assigned. Thus, the issue before us has been recharacterized to entitlement to a rating in excess of 10 percent for left ankle with left achilles tendonitis with calcification from January 1, 2020. 1. Entitlement to a rating in excess of 10 percent for left ankle with left achilles tendonitis with calcification from January 1, 2020 is remanded. VA examinations must include joint testing on both active and passive motion, and in weight-bearing and non-weight-bearing circumstances on both the service-connected and the opposite, undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, estimated ranges of motion should be provided during flare-ups or functional loss due to pain, if feasible, even if the Veteran is not experiencing a flare up or pain during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the July 2020 VA examination did not fully comport with the requirements of Correia or Sharp. Thus, there was not substantial compliance with the October 2019 Board remand instructions as the Board remanded for a new VA examination to determine the severity of the Veteran's condition post-procedure. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, a remand is necessary for a new VA examination. 2. Entitlement to individual unemployability is remanded. Remand is required for the TDIU claim because it is inextricably intertwined with the other remanded claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). A remand is also needed for further development. Although, some VA treatment records suggest that the Veteran retired in 2011, both private treatment records and VA examinations suggest that the Veteran may still be employed. Des Moines VA treatment records from November 2014 noted that the Veteran fell at his place of employment about 2 months ago. Des Moines VA treatment records from December 2016 noted that the Veteran worked at Eagle Iron Works and sustained injuries. Des Moines VA treatment records from August 2020 suggest that he was employed in April 2020. The Veteran has only identified Modern Motors as an employer on his October 2020 VA 21-8940. Information regarding all his past employers is needed including Eagle Iron works. Thus, a remand is necessary to give the Veteran on opportunity to send all information regarding past employers not currently listed on his VA Form 21-8940. The Board would like to remind the Veteran that the duty to assist is not a one-way street and if he wants help in developing this claim, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining putative evidence. See Woody. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Obtain a VA examination by an appropriate medical professional as to the current severity of his service-connected left ankle. A copy of this REMAND and the claim file must be made available to and reviewed by the examiner. Range of motion measurements of the left ankle (and the right ankle, if undamaged) must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. The examiner must also assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up at the time of the examination, the examiner must still provide an estimated assessment, using lay observations elicited from the Veteran. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training). Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 2. Send notice to the Veteran requesting all information regarding his past employer that are not currently listed on his VA Form 21-8940 to include Eagle Iron Works. Thereafter, the RO should send the employer a Request for Employment Information (VA Form 21-4192) to complete and return to the VA. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.