Citation Nr: 20003777 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 14-36 730 DATE: January 16, 2020 REMANDED Entitlement to an increased rating for residuals of right fibula fracture with continuing ankle disability, currently evaluated as 30 percent disabling is remanded. Entitlement to service connection for a heart disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1977 to July 1980. Ankle Disability and Heart Disorder A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the October 2018 remand, the Board noted that an August 2013 VA examiner opined that the Veteran did not have a current heart disorder and therefor no heart disorder was related to service. The Veteran claimed treatment at a private facility for a myocardial infraction. The Board instructed the AOJ to send the Veteran a letter requesting that he provide sufficient information and a signed and dated authorization to enable VA to obtain any relevant private medical records, including any treatment from Lexington Medical Center in South Carolina. There is no evidence the AOJ complied with this remand order. Consequently, no addendum opinion was provided in association with the Veteran’s service connection claim for a heart disorder. Additionally, the Veteran was to be afforded an examination to assess the current severity of the right fibula fracture with continuing ankle disability. The Board acknowledges that the Veteran failed to report for a scheduled VA examination on August 30, 2019. The Board notes that the evidence of record does not contain any letter, VA Form 119, or other document reflecting that the Veteran was properly notified of his scheduled examination. Because the Board cannot determine if the Veteran was properly notified of his scheduled examination without documentation in the file, the Board finds good cause for the Veteran’s failure to report for his VA examinations. Thus, the appeal is remanded. Moreover, the Veteran has claimed that he is unable to work due to his ankle disability. Therefore, the Board finds that the increased rating claim should be adjudicated prior to adjudicating the claim for a total disability rating based on individual unemployability, as the assigned evaluation may affect the outcome. The matters are REMANDED for the following action: 1. Associate with the claims file all outstanding VA treatment records. 2. Send the Veteran letter requesting that he provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any relevant private medical records, including any treatment from Lexington Medical Center in South Carolina. 3. Thereafter, forward the entire claims file in electronic records and a copy of this remand to an appropriate VA examiner for an addendum opinion addressing the etiology of any current heart disorder. If examination is indicated, it should be scheduled in accordance with applicable procedures. The examiner should first identify all current heart disorders. Then, for each diagnosed disability, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that it is related to the Veteran’s active duty service. The rationale for all opinions expressed must be provided. 4. The Veteran should be afforded a VA examination to evaluate the current severity of the right fibula fracture with continuing ankle disability. The electronic claims folders should be made available to the examiner for review in conjunction with the examination and the examiner should acknowledge such review in the examination report. Any indicated studies should be performed. The examination should be conducted in accordance with the current disability benefits questionnaires or examination worksheets applicable to the lower leg to include the knee and ankle. Range of motion in active motion, passive motion, w4eight-bearing, and nonweight-bearing, for the joint in question and any opposing undamaged joint must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that it so. The rationale for all opinions expressed must be provided. 5. The Veteran must report for the examination or show good cause for failing to report. 38 C.F.R. § 3.655. If the Veteran fails to report his claim may be decided based on the evidence of record. 38 C.F.R. § 3.655(b). 6. If the Veteran refuses the examination or fails to report for the examination, that should be clearly documented in the record, to include evidence that the notice letter was sent to the proper address. 7. The AOJ should also consider whether the Veteran is entitled to a TDIU. In so doing, the AOJ may decided to pursue further development of the Veteran’s employment history and/or obtain additional medical evidence or a medical opinion. 8. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issues on appeal. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.