Citation Nr: 22044288 Decision Date: 08/03/22 Archive Date: 08/03/22 DOCKET NO. 10-18 335 DATE: August 3, 2022 REMANDED Entitlement to a rating in excess of 10 percent for post-operative changes of the right distal tibia and fibula with posttraumatic arthritis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1979 to May 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In a January 2014 decision, the Board denied the claim for entitlement to an increased rating for post-operative changes of the right distal tibia and fibula with posttraumatic arthritis. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). The Court vacated and remanded the increased-rating issue in a January 2015 Memorandum Decision. The Board remanded the claim for further development consistent with the Court's decision in November 2015 and October 2019. The claim for a TDIU was previously remanded by the Board in January 2013, January 2014, August 2014, November 2015, and October 2019. As noted in the October 2019 Remand, the Court vacated the Board's denial of the Veteran's claim for a rating in excess of 10 percent for post-operative changes of the right distal tibia and fibula with posttraumatic arthritis because the record was unclear as to whether the Veteran had right ankle ankylosis. Accordingly, in its November 2015 remand, the Board instructed the AOJ to obtain a VA examination that determined whether the Veteran had ankylosis. Although an April 2016 VA examination was conducted, the report contained conflicting information regarding whether the Veteran had ankylosis of the right ankle. The October 2019 Remand directed the AOJ to provide another VA examination for the right tibia and fibula. The AOJ scheduled and canceled two VA examinations for the right tibia and fibula, as noted in February 2022 and May 2022 VA records. The VA records stated that the provider was "Unable to contact Veteran" but failed to indicate the method of attempted contact. The Veteran received notice of his failure to attend the VA examinations in a March 2022 letter and a May 2022 supplemental statement of the case. In March 2022 and June 2022 letters, the Veteran reported that he never received notice of a VA examination. He also affirmed that he would attend a future VA examination, if scheduled. Because the Veteran has stated that he never received notice of a VA examination and the AOJ failed to document its failed method(s) of contacting the Veteran, remand is necessary to schedule a VA examination for the right tibia and fibula. Entitlement to a TDIU is inextricably intertwined with the claim for entitlement to an increased rating for post-operative changes of the right tibia and fibula. Thus, the Board's adjudication of the TDIU claim must be deferred pending completion of the requested remand action. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected post-operative changes of the right distal tibia and fibula with posttraumatic arthritis. All attempts to contact the Veteran regarding the VA examination must be specifically identified and documented in the claims file. For the examination, all pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should also specifically confirm or rule out right ankle ankylosis, with an accompanying medical explanation for that finding. 2. Then, readjudicate the claims. If the benefits sought remain denied, issue a supplemental statement of the case and return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.