Citation Nr: 18149284 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 10-43 037 DATE: November 9, 2018 REMANDED Entitlement of an evaluation in excess of 10 percent for degenerative joint disease of the left foot (excluding a period of temporary total disability effective May 4, 2017) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1988 to June 1994, and November 1995 to September 1997. This matter is on appeal from an October 2009 decision. In October 2014, the Veteran testified at a hearing before a Veterans Law Judge. In January 2017, the matter was remanded for additional development. Subsequently, the Veterans Law Judge who conducted the hearing retired. In an October 2018 letter, the Veteran was offered the opportunity to testify at another hearing with a different Veterans Law Judge; however, he did not respond to the letter. Thus, as explained in the October 2018 letter, the Board will proceed without scheduling another hearing. 38 C.F.R. § 20.707. Also, the record reflects that the Veteran underwent surgery on his left foot in May 2017. In an August 2017 rating decision, a temporary 100 percent evaluation was assigned for the Veteran’s degenerative joint disease of the left foot effective May 4, 2017, based on surgical treatment necessitating convalescence. The temporary 100 percent rating is subject to a future review examination. Consequently, the Board has recharacterized the issue above. Finally, in July 2017, the Veteran’s attorney submitted a letter to VA indicating that she was withdrawing from the case as the Veteran’s representative. However, the regulations regarding withdrawal of services by a representative after certification of an appeal are enumerated in 38 C.F.R. § 20.608(b)(2) and require that good cause be provided for withdrawal of services after certification. The Veteran’s attorney has not complied with this regulation, and the Veteran has not submitted a power of attorney in favor of another representative. Thus, for purposes of this decision, the Board continues to recognize Jan D. Dils as the Veteran’s accredited representative. Left foot degenerative joint disease In August 2015 VA treatment records, it was indicated that the Veteran was being seen by Carolina Bone and Joint regarding his left foot. However, there are no treatment records in the file from this provider. A remand is required to allow VA to obtain authorization and request these identified private treatment records. Also, all updated VA treatment records should be obtained and associated with the claims file. In the January 2017 remand, the Board directed that the Veteran be afforded a new VA examination concerning his service-connected left foot degenerative joint disease. An examination was scheduled for March 2017, but the Veteran did not appear. However, the Veteran indicated in May 2017 and July 2017 that he had surgery on his left foot and wanted VA to be able to see the full problem and requested that the examination be rescheduled. The Veteran was scheduled for a VA examination in September 2017, and it was rescheduled for October 2017. The file contains notification from October 2017 that the Veteran did not appear. When a claimant, without showing good cause, fails to report for an examination scheduled in conjunction with a claim for an increased rating, the claim shall be denied. See 38 C.F.R. § 3.655. However, a letter from the Veteran’s attorney in July 2017 and subsequent VA treatment records from March 2018 and May 2018 list mailing addresses different from the mailing address the October 2017 examination notification was mailed to. The record also reflects that the Veteran was scheduled for a routine future examination in October 2018. While the Veteran did not appear, he indicated that he missed the appointment due to a family emergency, and requested that the examination be rescheduled. The record includes a subsequent October 2018 exam scheduling request, but the examination has not yet been completed. As there is an indication in the record that the Veteran may not have been properly notified of his scheduled VA examination; the Board finds that remand is warranted to verify the Veteran’s current address of record and schedule a new VA examination. Also, as a routine future examination has been scheduled regarding the continued assignment of the temporary total evaluation; the claim for an increased rating for left foot degenerative joint disease is inextricably intertwined, as the discontinuance of the temporary total evaluation could ultimately affect the period on appeal for an increased rating for the left foot. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for the complete treatment records from Carolina Bone and Joint. Once received, make two requests for the authorized records from this facility, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from October 2018 to the present. 3. If an examination of the left foot has not already been completed in conjunction with the October 2018 scheduling request, schedule the Veteran for an examination of the current severity of his degenerative joint disease of the left foot with notice provided to the Veteran at his most current address of record (see a July 2017 letter from the Veteran’s attorney and March and May 2018 VA records indicating two different addresses for the Veteran from the one used to send prior exam notifications). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the degenerative joint disease of the left foot alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel