Citation Nr: 1800485 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-26 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for left Achilles tendinitis. 2. Entitlement to an evaluation in excess of 10 percent for right Achilles tendinitis. 3. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from July 1975 to July 1979. This case initially came before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the Board at a July 2015 hearing conducted at the Board's offices in Washington, D.C. A transcript of the hearing is of record. This case was most recently before the Board in August 2017, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The appeal is again REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand, with ensuing delay, is required with respect to the Veteran's claims for increased evaluations for bilateral Achilles tendinitis. In the August 2017 remand, the Board found that a March 2017 VA ankle examination is inadequate for rating purposes, as it is internally inconsistent. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the examiner noted that additional factors contributing to the bilateral disabilities include less movement than normal due to ankylosis and instability of station of both ankles. However, later in the examination report the VA examiner noted there is neither ankylosis nor instability of either ankle. Due to these inconsistencies, the Board instructed that an addendum medical opinion be obtained or, if deemed medically necessary, an additional VA examination provided to clarify the functional effects of the Veteran's bilateral Achilles tendinitis. This development was not completed, thus necessitating another remand. See generally Stegall v. West, 11 Vet. App. 268, 271 (1998). The disposition of the Veteran's increased evaluation appeals may potentially affect his claim for entitlement to TDIU. All issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the TDIU claim must be remanded to the AOJ in accordance with the holding in Harris. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to the March 2017 VA examiner or, if not available, another VA examiner with appropriate medical expertise. If the examiner determines an additional physical examination of the Veteran would be beneficial, one is to be arranged. The entire claims file must be reviewed by the examiner. Any clinically indicated testing and/or consultations should be performed. Following a review of the claims file, and physical examination of the Veteran if performed, the examiner should clarify the additional factors contributing to the Veteran's bilateral Achilles tendinitis disabilities, specifically commenting on whether there is ankylosis and/or instability present in either ankle joint. See Ankle Disability Benefits Questionnaire Sections 3(e), 5, and 6. The examiner must also specifically comment on the Veteran's assertions of additional loss of motion of the ankle joints during periods of flare-up. See December 2017 Post-Remand Brief. A complete rationale, including discussion of the medical evidence, must be provided for any opinion expressed. 2. Review the VA addendum opinion and/or examination report and ensure compliance with the instructions above. If the report is deficient in any manner, corrective measures must be undertaken prior to recertification of the appeal to the Board. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).