Citation Nr: 20009754 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 10-18 273A DATE: February 6, 2020 REMANDED Entitlement to an initial rating in excess of 10 percent for status post surgical excision of entangled medial calcaneal nerve tissue, fibrous tissue, and an inclusion cyst of the right foot (exclusive of periods of temporary total rating) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1974 to August 1978. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from June 2008 and August 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia. This case was previously before the Board in November 2012 and July 2017, when it was remanded for further action. In November 2012, the case was remanded, in pertinent part, to provide the Veteran a statement of the case (SOC) addressing his entitlement to an initial rating in excess of 10 percent for status post-surgical excision of entangled medial calcaneal nerve tissue, fibrous tissue, and an inclusion cyst of the right foot. In July 2017, the case was remanded a second time in order to afford him a hearing. In September 2019, the Veteran and his wife testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The case was most recently before the Board in November 2019, when it was remanded for additional development, to include obtaining a VA examination. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Entitlement to an initial rating in excess of 10 percent for status post surgical excision of entangled medial calcaneal nerve tissue, fibrous tissue, and an inclusion cyst of the right foot is remanded. Although the Board sincerely regrets the additional delay, another remand is required to ensure compliance with the previous remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). As stated above, the Board remanded the issue on appeal in November 2019. Among other things, the remand instructed the AOJ to afford the Veteran a VA medical examination for the purpose of assessing the current severity of his service-connected status postsurgical excision of entangled medial calcaneal nerve tissue, fibrous tissue, and an inclusion cyst of the right foot. No such examination has been obtained. When the Board remands an appeal, the claimant is entitled to substantial compliance with the Board’s remand directives. Stegall, 11 Vet. App. 268 (holding that a remand by the Board confers the right to compliance with remand orders); see also Dyment v. West, 13 Vet. App. 141 (1999). Because the requested examination has not been obtained, there has not been substantial compliance with the November 2019 Board remand directives and another remand is necessary. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination by an appropriate clinician for the purpose of assessing the current severity of his service-connected status postsurgical excision of entangled medial calcaneal nerve tissue, fibrous tissue, and an inclusion cyst of the right foot. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should describe all signs and symptoms associated with the status postsurgical excision of entangled medial calcaneal nerve tissue, fibrous tissue, and an inclusion cyst of the right foot. The examiner should identify the nerve, or nerve(s), involved. If paralysis of a nerve is implicated, the examiner should note whether the paralysis is complete or, if not, whether any incomplete paralysis is best characterized as mild, moderate, or severe. The examiner should also indicate whether the Veteran’s disability is manifested by neuralgia or neuritis of an affected nerve. If it is, the examiner should indicate whether any neuritis is manifested by loss of reflexes, muscle atrophy, sensory disturbances, constant pain, and/or pain that is at times excruciating. The examiner should also indicate whether any neuralgia is manifested by dull and intermittent pain. Finally, to the extent possible, the examiner should also provide a retrospective opinion as to the estimated severity of the Veteran’s condition since September 2, 2008, if feasible. In so doing, the examiner should undertake a longitudinal review of the record, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. A complete rationale for all opinions should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.