Citation Nr: 22018673 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-55 995A DATE: March 30, 2022 REMANDED Entitlement to an initial compensable rating for left leg distal fibula fracture is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), as well as consideration of special monthly compensation (SMC) at the housebound rate since March 2, 2020, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1976 to December 1985. In April 2019, the remaining issues on appeal for entitlement to an initial compensable rating for left leg distal fibula fracture and TDIU were remanded for additional evidentiary development. The case has been returned to the Board for appellate review. 1. Entitlement to an initial compensable rating for left leg distal fibula fracture On July 9, 2015, the Veteran filed a VA Form 21-0966 (Intent to File a Claim for Compensation), and within one year, on July 16, 2015, he filed a VA Form 21-526EZ requesting to reopen the previously denied claim of service connection for left leg distal fibula fracture. In the November 2015 VA rating decision on appeal, the issue of service connection for left leg distal fibula fracture was granted and assigned a noncompensable (0 percent) evaluation effective from July 9, 2015. The Veteran timely disagreed with the evaluation of disability and the case was perfected on appeal to the Board. Pursuant to the April 2019 remand directives, the Agency of Original Jurisdiction (AOJ) was instructed to obtain and outstanding VA treatment records and to schedule the Veteran for a VA examination to evaluate the severity of the service-connected left leg distal fibula fracture. A November 2019 Exam Scheduling Request report shows the AOJ scheduled the Veteran for a VA examination to assess the Veteran's left leg distal fibula fracture. A November 2019 Exam Scheduling Request Contention Cancellation report indicates this examination was cancelled because the Veteran failed to show. Nevertheless, in an August 2020 correspondence, the Veteran explained that he failed to attend the scheduled examination for his left leg distal fibula fracture because he never received notification. Under VA regulations, when a claimant fails to report for a VA examination or re-examination that is scheduled in conjunction with an original claim, and fails to provide good cause for this failure to report, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655. In this case, review of the claims file shows that the address the Veteran provided on subsequent VA documents dated until a correspondence in 2022 was the same address on the November 2019 Exam Scheduling Request report. As a result, the Board finds that the November 2019 Exam Scheduling Request report documents that the Veteran's correct address of record (at that time) was listed. Nevertheless, in the light most favorable to the Veteran and pursuant to his assertion that he never received notification of the scheduled examination, this issue on appeal is remanded for the AOJ to schedule another VA examination to evaluate the severity of the Veteran's service-connected left leg distal fibula fracture. 2. Entitlement to a TDIU, to include consideration of SMC at the housebound rate since March 2, 2020 In the February 2015 VA rating decision, the issue of entitlement to a TDIU was denied. On July 9, 2015, the Veteran filed a VA Form 21-0966 (Intent to File a Claim for Compensation), and within one year, on July 16, 2015, he filed a VA Form 21-526EZ requesting entitlement to a TDIU, in part due to his left leg disability. Review of the most recent VA rating decision in August 2020 shows that since March 2, 2020, the Veteran has been service connected for posttraumatic stress disorder (PTSD) with major depressive disorder at 100 percent disabling. As a result, the Board has recharacterized this claim on appeal for entitlement to a TDIU, as well as consideration of SMC at the housebound rate since March 2, 2020. See 38 U.S.C. § 1114(s)(1); 38 C.F.R. §§ 3.350(i), 4.16. While the Board remands the issue of entitlement to a compensable rating for left leg distal fibula fracture for additional evidentiary development, as discussed above, that decision may impact this claim for TDIU. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file all outstanding VA treatment records dated since June 2020. 2. Then, schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the service-connected left leg distal fibula fracture. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide all findings, along with a complete rationale for any opinions provided. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range 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, he or she should clearly explain the basis for this decision. If the Veteran reports flare-up episodes, the examiner must assess any additional functional loss during flare-ups. If an assessment is not possible without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must elicit relevant information as to the Veteran's flare ups or ask him to describe the additional functional loss, if any, he has during flares and then 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 cannot do so. Sharp v. Shulkin, 29 Vet. App. 26 (2017). If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. It is not sufficient to abstain from providing an opinion because the Veteran is not examined after repetitive use over time or not examined during a flare up. 3. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.