Citation Nr: 18132332
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-15 974
DATE:	September 6, 2018
REMANDED
Entitlement to a rating in excess of 10 percent for fracture residuals of the right hand is remanded.  
Entitlement to a rating in excess of 20 percent for fracture residuals of the right ankle is remanded.  
Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to September 13, 2013, is remanded.  
 
REASONS FOR REMAND
The Veteran served on active duty from August 1979 to August 1982.  
This case comes to the Board from a February 2012 rating decision.  
In a September 2013 submission, the Veteran withdrew the appeal with respect to service connection for hearing loss in the left ear and to an increased rating for hearing loss in the right ear.  
In April 2018 correspondence, the Veteran withdrew his request for a Board hearing.  
1. Entitlement to a rating in excess of 10 percent for fracture residuals of the right hand.  
2. Entitlement to a rating in excess of 20 percent for fracture residuals of the right ankle.  
The most recent VA examinations with respect to residuals of fractures of the right hand and right ankle were conducted in October 2011.  VA treatment records in February 2015 reflect complaints of increased right hand pain in February 2014, and records in August 2014 note that the Veteran twisted his right ankle.  The Board finds that a remand is warranted for VA examinations with respect to the current nature and severity of the Veteran’s fracture residuals of the right hand and right ankle as they may have increased in severity.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  
Additionally, the examination should comply with Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners’ obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups).
Prior to the examinations, any outstanding records of pertinent medical treatment should be obtained and added to the record.  
3. Entitlement to a TDIU, prior to September 13, 2013, is remanded.  
In June 2013, the Veteran filed a claim for a TDIU.  He indicated that his service-connected right hand and right ankle disabilities, along with his psychiatric disorder, prevented him from securing or following any substantially gainful occupation, noting that he last worked in 2009.  In a March 2015 rating decision, a 100 percent rating was assigned for his service-connected mood disorder with depressive symptoms, effective September 13, 2013.
The assignment of the 100 percent rating renders the issue of entitlement to a TDIU moot from September 13, 2013, as unemployability has not been raised without consideration of the service-connected psychiatric disorder.  However, the TDIU issue is part and parcel of the appeal pertaining to the increased ratings claims for the right hand and ankle disabilities, and unemployability has been raised for the period prior to September 13, 2013, when the psychiatric disorder was rated at 50 percent rather than 100 percent.  Thus, the Board has jurisdiction over the TDIU issue for this earlier period.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  
The issue of TDIU, prior to September 13, 2013, is intertwined with the pending appeal.  As such, it is also remanded.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  
The matters are REMANDED for the following action:
1. Obtain complete VA treatment records since May 2015.  
2. Schedule the Veteran for a VA examination(s) to assess the severity of the service-connected fracture residuals of the right hand and right ankle conditions.  
The examiner should report range of motion findings in degrees, on both active and passive range of motion testing, in weight bearing and nonweight-bearing, with range of motion of the uninjured other side (if applicable), per Correia.  
If there are flare-ups, and if the examination cannot reasonably be conducted during a flare-up, the examiner should estimate the functional loss during a flare, per Sharp.
If any of these assessments cannot be accomplished, it should be explained why.  A rationale for all opinions expressed should be provided.  
3. When readjudicating the appeal, include the issue of entitlement to a TDIU prior to September 13, 2013.
 
RYAN T. KESSEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Taylor

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