Citation Nr: 20021941 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 15-24 362 DATE: March 30, 2020 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to higher initial disability ratings for left calcaneal exostosis, currently rated as noncompensable from May 28, 2009, 10 percent from January 20, 2011, and 20 percent since August 8, 2019, is remanded. Entitlement to higher initial disability ratings for right knee strain, currently rated as noncompensable since March 23, 2011, and 10 percent since August 8, 2019, is remanded. Entitlement to higher initial disability ratings for left knee strain, currently rated as noncompensable since March 23, 2011, and 10 percent since August 8, 2019, is remanded. REASONS FOR REMAND The Veteran had active service from October 1987 to March 1988 and from December 2001 to October 2002, with additional service in the Air National Guard. These issues are on appeal from February 2010, November 2011, July 2015, and September 2019 rating decisions. In August 2016, the Veteran testified before the undersigned at a Board of Veterans’ Appeals (Board) hearing. In February 2018, the Board remanded these claims for further development. New and pertinent evidence was added to the record by the Agency of Original Jurisdiction (AOJ) subsequent to the September 2019 Supplemental Statement of the Case (SSOC). This evidence has not been reviewed by the AOJ in the first instance, and a waiver of initial review from the Veteran or his representative is not of record. However, the Veteran is not prejudiced as, upon remand, the AOJ will review this new evidence in the first instance during their readjudication of the claims. 1. Entitlement to a TDIU is remanded. As this claim is being remanded for other reasons, an updated TDIU form should also be obtained upon remand. The most recent VA 21-8940 form contained in the claims file is dated in January 2015. Upon remand, the AOJ should request the Veteran’s tax returns to confirm his claimed unemployment during the appeal period. In a May 2018 statement, the Veteran reported that he is unable to work because he has to take pain medications for his service-connected disabilities and thus he would not be able to pass a drug test for employment. The Veteran’s January 2015 VA 21-8940 form documents that he last worked as a mechanic. Based on this favorable evidence, a VA medical opinion regarding the functional impairment from the Veteran’s service-connected disabilities should be obtained. 2. Entitlement to higher initial disability ratings for left calcaneal exostosis, currently rated as noncompensable from May 28, 2009, 10 percent from January 20, 2011, and 20 percent since August 8, 2019, is remanded. 3. Entitlement to higher initial disability ratings for right knee strain, currently rated as noncompensable since March 23, 2011, and 10 percent since August 8, 2019, is remanded. 4. Entitlement to higher initial disability ratings for left knee strain, currently rated as noncompensable since March 23, 2011, and 10 percent since August 8, 2019, is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the initial rating issues. Specifically, in February 2018, the Board remanded the claims for VA examinations and medical opinions. VA examinations were obtained in August 2019. However, the August 2019 VA examiners did not address any of the lay evidence outlined by the Board in its remand, did not state whether the Veteran’s left foot results in moderate, moderately severe, or severe impairment, and did not record the dates and duration of all flare-ups since 2011. All of these opinions were requested by the Board in its February 2018 remand. Additionally, the VA examination did not provide ranges of motion for the left ankle, which are necessary since the service-connected left calcaneal exostosis disability includes the left ankle. Another remand for VA examinations and medical opinions is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a recent TDIU claim form. 2. Ask the Veteran to provide IRS tax returns from 2009 through 2020, and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return,” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2009 thru 2020, and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left calcaneal exostosis (previously claimed as left heel and ankle bone spur). The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must state whether the disability results in moderate, moderately severe, or severe impairment. In so doing, the examiner must test the Veteran’s bilateral ankles in active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). In so doing, 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. The examiner must record the dates and duration of all flare-ups since 2011. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). The examiner must also comment as to whether functional impairment and severity opinions for the left calcaneal exostosis can be estimated for the June 2015 and August 2019 VA examinations conducted during the appeal period. The examiner must also elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected left calcaneal exostosis (to include the pain medications taken for his service-connected disabilities and his inability to pass a drug test) on employment. The examiner should identify all limitations or functional impairment caused solely by the Veteran’s service-connected left calcaneal exostosis. In providing the opinions, the examiner must address the following: • The Veteran’s testimony that his left heel and ankle are in constant pain at the bottom part of his foot and the back side of his heel. • His testimony that he has constant dull pain as his spur builds up with calcium. • His contention that the dull pain he experiences is from the left foot bone, and the spurs are from his muscle pushing up against the spur. • The Veteran contends that he has been taking approximately 112 hydrocodone pills regularly each month for almost four years to assist with pain. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). In so doing, 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. The examiner must record the dates and duration of all flare-ups since 2011. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). The examiner must also comment as to whether functional impairment opinions for the knees can be estimated for the October 2011, June 2015, and August 2019 VA examinations conducted during the appeal period. The examiner must also elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected bilateral knee strain (to include the pain medications taken for his service-connected disabilities and his inability to pass a drug test) on employment. The examiner should identify all limitations or functional impairment caused solely by the Veteran’s service-connected bilateral knee strain. In providing the opinions, the examiner must address the following: • The Veteran’s testimony that his knees pop and wobble as he switches pressure between his left and right feet. • The Veteran’s testimony that his left knee feels like it is coming out of the joint. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a SSOC and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shauna M. Watkins, 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.