Citation Nr: 1753842 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 10-02 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a compensable initial rating for scars of the lower extremities. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from July 1981 to July 1984 and from May 1985 to May 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This case was previously remanded by the Board in October 2011and May 2014. The case has been returned to the Board for review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that the issues on appeal must be remanded for further development before a decision may be made on the merits. Bilateral Lower Extremity Scars In October 2011, the Board remanded the Veteran's claim for entitlement to a compensable rating for bilateral lower extremity scars to provide the Veteran with a VA examination relating to the current nature and severity of his lower extremity scars. Specifically, the October 2011 remand requested that the VA examiner "identify and describe all scars of the lower extremities, to include specifying whether reported lower extremity pain is referable to individual scars." The Veteran was provided a VA scars examination in November 2011. The VA examiner conducted an in-person examination. The VA examiner noted that the Veteran had four superficial non-linear scars of the right lower extremity, five linear scars of the left lower extremity and two superficial non-linear scars of the left lower extremity. The VA examiner further stated that the approximate total area of superficial non-linear scars of the right lower extremity was 5.45 cm2 and the approximate total area of superficial non-linear scars of the left lower extremity was 9.50 cm2. The VA examiner noted that none of the Veteran's scars were unstable or painful. However, the VA examiner did not discuss the Veteran's statements that his scars are painful. The Veteran, as a lay person, is competent to report bilateral lower extremity symptoms, such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, in May 2014, the Board remanded the Veteran's claim for entitlement to a compensable rating for bilateral lower extremity scars to provide another VA examination. Specifically, the May 2014 remand requested that the VA examiner "identify and describe all scars of the lower extremities, to include specifying whether the Veteran's reported lower extremity pain is referable to individual scars." The Veteran was provided a VA scars examination in November 2014. The VA examiner reviewed the record and conducted an in-person examination. The November 2014 VA examiner noted that the Veteran had five scars on his right lower extremity and eleven scars on his left lower extremity. The VA examiner further noted that the approximate total area of nonlinear scars was approximately 6.35 cm2 for the right lower extremity and 9.05 cm2 for the left lower extremity. The VA examiner stated that the Veteran's scars were not painful or unstable. However, the November 2014 VA examiner did not discuss the Veteran's statements that his lower extremity scars are painful as directed by the May 2014 Board remand. Accordingly, both the November 2011 and November 2014 VA examinations are inadequate for decision making purposes and do not substantially comply with the October 2011 and May 2014 Board remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). On remand the VA examiner must discuss the Veteran's January 2010 statement that "the scars on both extremities are tender" and that he has swelling and continuous pain in both extremities. Entitlement to a TDIU The claim for a TDIU is inextricably intertwined with the Veteran's claim for entitlement to a compensable rating for scars of the lower extremities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Therefore, the Board finds that the increased rating issue must be adjudicated by the AOJ prior to appellate consideration of entitlement to a TDIU. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA examination as to the service-connected scars of the lower extremities. The record and a copy of this remand must be provided to the clinician selected to conduct the examination. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. All manifestations and functional impairment should be reported, to include as to ability to maintain substantially gainful employment. The examiner must provide a full description of the service-connected scars of the bilateral lower extremities, to include, but not limited to, the measurements of the scars, a determination as to whether the scars are painful or unstable and whether they are deep or superficial, and a determination as to whether there are other effects of the scars. The examiner must discuss the Veteran's January 2010 statements that "the scars on both extremities are tender" and that he has "swelling and [continued] pain in both extremities." A complete rationale for all opinions must be provided. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether entitlement to a compensable rating for scars of the lower extremities and entitlement to a TDIU may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).