Citation Nr: 18145259 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 09-50 062 DATE: October 26, 2018 REMANDED Entitlement to service connection for a dental disability for compensation purposes is remanded. Entitlement to service connection for a right foot disability, to include stress fractures, Achilles tendonitis, metatarsalgia due to degenerative joint disease of the first metatarsophalangeal joints and heel spurs, to include as secondary to service-connected right ankle disability, is remanded. Entitlement to service connection for a left foot disability, to include stress fractures, Achilles tendonitis, metatarsalgia due to degenerative joint disease of the first metatarsophalangeal joints and heel spurs, to include as secondary to service-connected right ankle disability, is remanded. Entitlement to an extraschedular rating for orthopedic manifestations of service-connected right ankle disability is remanded. Entitlement to a rating in excess of 20 percent for orthopedic manifestations of service-connected right ankle injury, with paralysis of the superficial peroneal nerve, is remanded. Entitlement to a separate compensable rating for neurologic manifestations of service-connected right ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1973 to October 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from May 2008 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In November 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ), presiding in Washington, D.C. A transcript of that hearing has been associated with the record. (1.) Entitlement to service connection for a dental disability for compensation purposes; (2. and 3.) entitlement to service connection for a right foot disability and a left foot disability, to include stress fractures, Achilles tendonitis, metatarsalgia due to degenerative joint disease of the first metatarsophalangeal joints and heel spurs, to include as secondary to service-connected right ankle disability, (4.) entitlement to an extraschedular rating for orthopedic manifestations of service-connected right ankle disability; (5.) entitlement to a rating in excess of 20 percent for orthopedic manifestations of service-connected right ankle injury, with paralysis of the superficial peroneal nerve; (6.) entitlement to a separate compensable rating for neurologic manifestations of service-connected right ankle disability; and (7.) entitlement to a TDIU, are remanded These issues were previously before the Board in February 2018, at which time the Board, in part, remanded the claims in order to provide the Veteran with a VA examination to assess the severity of her service-connected orthopedic manifestations of residuals of a right ankle injury with paralysis of the superficial peroneal nerve, to schedule the Veteran for a VA neurological examination by an individual with appropriate expertise to ascertain the current severity and neurologic manifestations of her service-connected right ankle disability, and to schedule the Veteran for a VA examination by an appropriate medical practitioner to obtain a medical opinion regarding the impact of her service-connected disabilities on her activities of occupational functioning. Additionally, the Board’s February 2018 Remand directed the RO to refer the issue of entitlement to an extraschedular rating for orthopedic manifestations of service-connected right ankle disability to the Under Secretary for Benefits or the Director of Compensation Service. However, as emphasized by the Veteran’s representative in her September 2018 Informal Hearing Presentation, none of the above development was completed by the RO, and the remanded issues were never readjudicated in a Rating Decision and/or Supplemental Statement of the Case. A remand by the Board imposes upon the Secretary of the VA a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Id. Consequently, the Board finds that another remand is required for the AOJ to comply with the prior remand requirements, to include scheduling the Veteran for the aforementioned examinations as well as undertaking all other development explicitly requested in the prior remand. Finally, with respect to all claims, a review of the record reveals that the Veteran receives medical treatment through the Cheyenne VA Medical and Regional Office Center in Cheyenne, Wyoming. However, the most recent records associated with the claims file are dated in July 2017, over one year ago. VA medical records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). As such, on remand the Veteran’s ongoing VA medical treatment records should also be obtained. See 38 U.S.C. § 5103A (b) (West 2014). The matters are REMANDED for the following action: 1. Obtain all VA treatment records for the Veteran dated from July 2017 to the present from the Cheyenne VA Medical and Regional Office Center in Cheyenne, Wyoming. All attempts to obtain these records should be documented in the claims file. Any negative replies must be in writing, and associated with the claims file. 2. Thereafter, provide the Veteran with a VA examination to assess the severity of her service-connected orthopedic manifestations of residuals of a right ankle injury with paralysis of the superficial peroneal nerve. Prior written notice must be provided to the Veteran informing her of the date, time, and location of her scheduled examination. The prior written notice should be mailed to the Veteran at her most recent address of record, or any other updated address of record provided by the Veteran. A copy of the mailed examination notice must be associated with the claims file. The claims file must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner should describe the Veteran's disabilities in accordance with VA rating criteria. All opinions should be accompanied by a complete rationale. In addition, the examiner must specifically discuss the May 2014 VA examination report, which indicated that functionality of the Veteran's right ankle was so diminished that amputation with prosthesis would serve her equally as well, as well as the May 2015 VA examination report, which indicated that the functionality of her right ankle was not so diminished that she would equally benefit from amputation and prosthesis. The VA examiner is asked to resolve the discrepancy between the May 2014 and May 2015 VA examination reports regarding the functionality of the Veteran's right ankle. 3. Also, schedule the Veteran for a VA neurological examination by an individual with appropriate expertise to ascertain the current nature and severity of neurologic manifestations of her service-connected right ankle disability. Prior written notice must be provided to the Veteran informing her of the date, time, and location of her scheduled examination. The prior written notice should be mailed to the Veteran at her most recent address of record, or any other updated address of record provided by the Veteran. A copy of the mailed examination notice must be associated with the claims file. The claims file, along with a full copy of this remand, must be made available to the examiner for a review of the Veteran's pertinent medical history. All necessary diagnostic testing and studies deemed necessary by the examiner to make this determination should be undertaken. The examiner should (1) first, specifically identify the exact nerves that are affected by service-connected right ankle disability and (2) then, describe the severity (whether the involvement is only sensory, or if it is characterized by loss of reflexes, muscle atrophy, sensory disturbances, constant pain, etc.) of any associated neurological impairment, including whether there is what amounts to complete versus incomplete paralysis; and whether it is mild, moderate, moderately severe, or severe. In rendering the opinions, the examiner should reconcile his/her findings with any conflicting medical evidence of record. A complete rationale should accompany all opinions provided. 4. Refer the issue of entitlement to an extraschedular rating for orthopedic manifestations of right ankle disability to the Under Secretary for Benefits or the Director of Compensation Service. 5. Thereafter, readjudicate the increased rating (other than TDIU) and service connection issues on appeal, including with consideration of all newly acquired evidence. If any benefit sought remains denied, then provide an additional Supplemental Statement of the Case to the Veteran and her representative, and provide the appropriate period to respond. 6. Thereafter, schedule the Veteran for a VA examination by an appropriate medical practitioner to obtain a medical opinion regarding the impact of the Veteran's service-connected disabilities on activities of occupational functioning. Prior written notice must be provided to the Veteran informing her of the date, time, and location of her scheduled examination. The prior written notice should be mailed to the Veteran at her most recent address of record, or any other updated address of record provided by the Veteran. A copy of the mailed examination notice must be associated with the claims file. A copy of this Remand and the entire claims file must be made available to and reviewed by the VA examiner. Based on a review of the claims file, and clinical examination findings, the examiner must describe the functional impact of the Veteran's service-connected disabilities, considered in combination, on occupational activities. In this regard, the examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history. When offering this opinion, the examiner should not consider the effects of age or any nonservice-connected disabilities. 7. After completing the above, readjudicate the remaining issue of entitlement to a TDIU. In doing so, if the RO finds that the Veteran is unemployable, but that her combined rating does not meet the criteria of 38 C.F.R. § 4.16(a) for any period under consideration, refer the Veteran's TDIU claim to the Director of Compensation Service for consideration of assignment of a TDIU on an extraschedular basis. If the benefit sought   remains denied, then issue a Supplemental Statement of the Case and afford the appropriate period for response. Thereafter, return the matter to the Board for appellate consideration, unless otherwise indicated. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel