Citation Nr: 20021835 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 11-10 421 DATE: March 27, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of spontaneous infection, right second toe, status post incision and drainage is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1989 to April 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In October 2012, the Veteran presented testimony before a Veterans Law Judge (VLJ) of the Board. A copy of the transcript is associated with the claims file. In August 2014 and November 2016 the Board remanded these matters for additional development. In May 2017, the Board sent a letter to the Veteran informing him that the VLJ before whom he had testified in August 2012 was no longer employed at the Board and advising him that he had a right to a new hearing before another VLJ that would decide his case. See 38U.S.C. §7107(c) (2012). The Veteran did not respond to the May 2017 letter and, therefore, it is presumed it did not wish to be scheduled for another hearing. Thereafter, in February 2018, the Board remanded this appeal for additional development. 1. Compensation Pursuant to 38 U.S.C. § 1151 Regrettably, the Board finds that there has not been substantial compliance with the prior February 2018 remand directives and, therefore, adjudication of this claim must again be delayed. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In the February 2018 remand directives, the Board noted that the opinion obtained in November 2016 failed to adequately address all of the questions presented in the November 2016 Board remand. The Board noted that the November 2016 opinion provider, who also provided opinions in November 2014 and January 2015, merely restated his comments from the prior VA examination reports. The physician did not describe any particular treatment records in support of his response, notably records from April 5, 2010 through April 14, 2010, or discussion of post-infection treatment. As such, the Board directed the RO to obtain an addendum opinion from a different examiner than who conducted the previous examinations. Following the issuance of the February 2018 remand, the Board notes that the RO attempted to schedule the Veteran for an examination. When the Veteran failed to report, the RO readjudicated the claims and issued the October 2019 Supplemental Statement of the Case. However, as the Veteran’s representative correctly argued in the January 2020 Post-Remand Brief, the Board’s prior directives were for an addendum opinion, which has not yet been obtained. Therefore, the Board finds a remand is required. 2. TDIU As previously noted by the Board in November 2016 and February 2018, the claim of entitlement to TDIU is inextricably intertwined with the issue of entitlement to compensation under 38 U.S.C. § 1151 and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate VA clinician regarding the claim of compensation pursuant to 38 C.F.R. § 1151. The claims file must be reviewed in its entirety in conjunction with rendering the requested opinions. The Veteran contends that VA failed to timely and/or properly diagnose his right toe condition when he first presented to the VA Emergency Department on April 6, 2010. Specifically, he claims that an incorrect diagnosis of gout was rendered on April 6, 2010. These alleged failures, according to the Veteran, allowed his condition to worsen and eventually resulted in more invasive treatment and more severe residuals than would have occurred had a correct diagnosis been timely made on April 6, 2010. After reviewing the claims file and the examination reports, the examiner should respond to the following: (a.) The examiner is asked to provide a medical opinion as to whether a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; AND (b.) The examiner is asked to provide a medical opinion as to whether the Veteran suffered disability that probably would have been avoided if proper diagnosis and treatment had been rendered when the Veteran first reported to the Emergency Department on April 6, 2010. In rendering an opinion on this section, the examiner must discuss the appropriateness of the specific diagnoses and treatments rendered from April 5, 2010 through April 14, 2010. A complete rationale for all opinions expressed must be provided in the examination report, to include reference to pertinent evidence. In so doing, the examiner must review and specifically discuss the VA treatment records dated from April 5, 2010 through April 14, 2010 to support his or her conclusions. Furthermore, the examiner must discuss the treatment received for the infection. 2. Regarding the claim of entitlement to a TDIU, the RO is instructed to undertake any further development deemed necessary in the adjudication of this claim. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.