Citation Nr: 20041187 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 11-29 364 DATE: June 17, 2020 ORDER Service connection for a left eye disability, to include as secondary to service-connected posttraumatic headaches, is denied. Service connection for a right eye disability, to include as secondary to service-connected posttraumatic headaches, is denied. A rating in excess of 80 percent for service-connected bilateral hearing loss is denied. An effective date earlier than March 27, 2015, for the 80 percent rating for bilateral hearing loss is denied. Entitlement to an effective date of December 1, 2013, for the award of a total disability rating based on individual unemployability (TDIU) is granted. REMANDED The issue of a compensable rating for onychomycosis and dyshidrosis of the toenails of both feet is remanded. FINDINGS OF FACT 1. The Veteran’s left eye disability is not secondary to service-connected posttraumatic headaches, and is not otherwise related to an in-service injury or disease. 2. The Veteran’s right eye disability is not secondary to service-connected posttraumatic headaches, and is not otherwise related to an in-service injury or disease. 3. The Veteran’s service-connected bilateral hearing loss disability is productive of level XI hearing acuity in the right ear and level IX hearing acuity in the left ear. 4. March 27, 2015 is the first date that it was factually ascertainable that the Veteran’s hearing loss disability had increased in severity to a degree that would warrant an 80 percent rating. 5. Effective, December 1, 2013, the Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a left eye disability due to service or service-connected posttraumatic headaches are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a right eye disability due to service or service-connected posttraumatic headaches are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to disability evaluation in excess of 80 percent, for the Veteran’s service-connected hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 8100. 4. The criteria for an effective date earlier than March 27, 2015 for an increased rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.155, 3.157, 3.400. 5. Effective December 1, 2013, the criteria for a total disability rating due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1958 to October 1960. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2011 and January 2016 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). These matters were remanded in July 2019 for further development. Service connection for right and left eye disabilities, to include as secondary to service-connected post-traumatic headaches, is denied. The Veteran contends that he has eye disabilities that are related to service. Alternatively, he contends that his eye disabilities are secondary to his service-connected post-traumatic headaches. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of glaucoma (bilateral), pseudophakia (bilateral), and status post central retinal vein occlusion (left), and evidence shows that in August 1959, the Veteran fell off a grease rack and lost consciousness, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses began during service or are otherwise related to an in-service injury, event, or disease. Service treatment records reflect that the Veteran reported “vision” as a defect in April 1958. This appears to be simply an acknowledgement that he wore glasses upon entry into service. He noted that he wore glasses. An October 1958 examination revealed no defects. The Veteran underwent a VA examination in February 2019. The examiner diagnosed glaucoma (bilateral), pseudophakia (bilateral), and status post central retinal vein occlusion (left). The examiner opined that the diagnoses were less likely than not related to service. The Board, in its July 2019 Remand, found that the opinion was inadequate because it failed to consider an August 1959 incident in which the Veteran fell off a grease rack and lost consciousness. Pursuant to the Board’s Remand, the RO obtained an addendum opinion. The complete claims file was reviewed in January 2020. The medical examiner opined that it is less likely than not (less than 50 percent probability) the Veteran’s diagnosed left eye and right eye disorders, to include bilateral glaucoma, left eye status post central retinal vein occlusion, and bilateral pseudophakia, are related to his military service (to include active duty from October 1958 to October 1960 and the July 1989 verified period of ACDUTRA). The examiner noted that none of the service treatment records revealed a diagnosis, treatment, or complaint of glaucoma, retinal vein occlusion, pseudophakia, ocular trauma secondary to an August 1959 incident in which he fell off a grease rack with loss of consciousness and decreased respiratory functions for 2 minutes. His pupils were reactive to light and accommodation, and fundi were normal. He was discharged without treatment. There were no complaints, evaluation, or treatment of “vision trouble” in subsequent service treatment records, other than refractive error. The examiner noted that an October 1993 treatment report documented “a central retinal vein occlusion in his left eye.” At that time, no diagnosis or treatment of glaucoma or pseudophakia was revealed. The examiner noted that current literature reveals that risk factors for central retinal vein occlusion include age; hypertension; diabetes; smoking; obesity; hypercoagulable state, particularly factor V Leiden and activated protein C resistance; glaucoma, which prevents retinal vein outflow and leads to stasis; and retinal arteriolar abnormalities. The examiner noted that when central retinal vein occlusion was diagnosed, the Veteran was approximately 58 years old and he had hypertension. He noted that treatment of the Veteran’s 1993 central retinal vein occlusion included intravitreal therapy. The examiner cited current medical literature which notes that treatment of central retinal vein occlusion may include intravitreal therapy including the need for multiple injections over periods of months to years, and a remote risk of infectious endophthalmitis from the injection procedure that can result in catastrophic visual loss. Other risks of intravitreal injection include cataract, retinal detachment or tears, and intraocular hemorrhage. The examiner noted that post-service treatment records documented status post cataract surgery treatment (in 2013) resulting in pseudophakia at age 78. The examiner opined that it was more likely than not (50 percent probability) that the Veteran’s left (and right) cataract are, in accordance with current literature, secondary to treatment of left eye central retinal vein occlusion and age. Finally, regarding glaucoma, the examiner noted that current literature reveals major risk factors for developing open-angle glaucoma include age, black race, family history, and elevated intraocular pressure (IOP). Other factors include diabetes, hypertension, myopia, pseudoexfoliation, low diastolic perfusion pressure, cardiovascular disease, a history of prior vitreoretinal surgery, and hypothyroidism. The Veteran was 82 years old when primary open angle glaucoma was diagnosed. Therefore, the examiner opined that the Veteran has risk factors of age, hypertension, and history of vitreoretinal surgery (cataract surgery). He found that there is no evidence to support a claim of “bilateral glaucoma, left eye status post central retinal vein occlusion, and bilateral pseudophakia.” Regarding secondary service connection, the examiner found that it was less likely than not (less than 50 percent probability) that any left eye or right eye disorder, to include bilateral glaucoma, left eye status post central retinal vein occlusion, and bilateral pseudophakia is caused or aggravated (increased in severity) beyond the condition’s natural progress by service-connected posttraumatic headaches. He explained that based on review of current literature, there is no evidence to support a claim of posttraumatic headaches aggravating Veteran’s post-service conditions (any left eye or right eye disorder, to include bilateral glaucoma, left eye status post central retinal vein occlusion, and bilateral pseudophakia) in absence of ocular trauma. There is no evidence of an eye disability in service or for many years after service; and the lone medical opinion states that the Veteran’s current eye disabilities are less likely than not due to any in-service incident or that they were caused or aggravated by his service-connected post traumatic headaches. The Veteran believes his eye disabilities are related to an in-service injury or disease. In this case, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for right and left eye disabilities, to include as secondary to service-connected post-traumatic headaches must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A rating in excess of 80 percent, and an effective date earlier than March 27, 2015, for bilateral hearing loss are denied. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, however, an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The current version of the Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of §3.383 of this chapter. Id. A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI. A 20 percent disability rating is warranted where hearing in the better ear is III, and hearing in the poorer ear is VII to XI; or where hearing in the better ear is IV, and hearing in the poorer ear is VI to VIII; or where hearing in the better ear is V, and hearing in the poorer ear is V to VI. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran underwent a VA examination on March 27, 2015. Puretone thresholds for the ears, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 65 65 75 80 LEFT 70 70 70 85 The pure tone average was 71.25 (71) decibels in the right ear and 73.75 (74) decibels in the left ear. Speech recognition scores were 34 percent in the right ear and 36 percent in the left ear. Pursuant to Table VI, such examination findings translate to level XI hearing in the right ear and level IX hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Because the Veteran’s hearing loss represents an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86(a), Table VIa may be used if it reflects a higher level of hearing loss; however, pursuant to Table VIa, the findings translate to level VI hearing in each ear. Consequently, applying Table VII is more advantageous to the Veteran. Pursuant to Diagnostic Code 6100, this equates to an 80 percent rating. The Veteran underwent another VA examination in January 2020. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 60 60 75 70 LEFT 60 60 70 85 The pure tone average was 66.25 (66) decibels in the right ear and 68.75 (69) decibels in the left ear. Speech recognition scores were 52 percent in the right ear and 46 percent in the left ear. Pursuant to Table VI, such examination findings translate to level VIII hearing in the right ear and level VIII hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Because the Veteran’s hearing loss represents an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86(a), Table VIa may be used if it reflects a higher level of hearing loss; however, pursuant to Table VIa, the findings translate to level V hearing in each ear. Consequently, applying Table VII is more advantageous to the Veteran. Pursuant to Diagnostic Code 6100, this equates to a 50 percent rating. The Veteran has been assigned an 80 percent rating. This rating was based on the results of March 2015 examination, which was more advantageous to the Veteran than the January 2020 VA examination. The examination showed puretone averages and speech recognition scores which translated to level XI hearing in the right ear and level IX hearing in the left ear. As noted above, applying Table VII, Diagnostic Code 6100, this equates to an 80 percent rating for bilateral hearing loss. Exceptional patterns of hearing loss were shown; but applying the findings to Table VIa did not yield higher ratings. Based on these audiological test results, a rating in excess of 80 percent is not warranted. The Board acknowledges VA’s obligation to resolve all reasonable doubt in the Veteran’s favor; however, as noted previously, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered there is no doubt as to the proper evaluation to assign. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (finding that when a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria); 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100. Applying the audiological test results to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a rating in excess of 80 percent. There is no reasonable doubt to be resolved. In regard to the effective date, applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date for the assignment of an increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The applicable statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date. 38 U.S.C. § 5110(b)(2). If, however, the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of the claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 19 Vet. App. 125 (1997). The RO, in its January 2016 rating decision, granted the increase to 80 percent effective March 27, 2015, the date of the VA examination. In his May 2016 notice of disagreement, the Veteran cited McGrath v. Gober, asserting that the effective date of the increased rating should be the date that the disability increased, which is not necessarily the date of the examination. He argued that his hearing loss “did not suddenly increase from 50 percent to 80 percent on March 27, 2015, and it is unclear why an earlier effective date for the increased rating could not be issued.” It is likely true that the Veteran’s hearing loss difficulties did not “suddenly increase from 50 percent to 80 percent on March 27, 2015.” Nonetheless, there is no other basis for an effective date. This is the first date on which it is factually ascertainable that an increase in the disability had occurred. It does not appear that the Veteran had filed a claim for an increased rating. It appears that the examination was scheduled as a future examination to evaluate the Veteran’s service-connected hearing loss. There is no evidence prior to that examination that the Veteran’s hearing loss was worse than the previously rated 50 percent rating. The Veteran has not offered an alternative date for the increase specifically because, prior to March 27, 2015, it is not factually ascertainable that the Veteran’s hearing loss met the criteria for an 80 percent rating. In the absence of such evidence, there is no basis upon which to grant an earlier effective date. An effective date of December 1, 2013, for the award of a total disability rating based on individual unemployability (TDIU) is granted. The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date for the assignment of an increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The applicable statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date. 38 U.S.C. § 5110(b)(2). If, however, the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of the claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 19 Vet. App. 125 (1997). In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Veteran submitted an October 2016 Vocational Assessment in which the examiner opined that in her opinion, the Veteran’s service-connected disabilities precluded him from following substantially gainful employment since at least 2008. She noted the Veteran’s reports of difficulties walking and standing. She also noted that the Veteran’s severe hearing loss disability would make employment difficult. The Board notes that in 2008, the Veteran’s only service-connected disabilities were status post excision ingrown bilateral toenails with hallux rigidus and scar; residuals of an appendectomy; and onychomycosis and dyshidrosis of the toenails of both feet. All three disabilities were rated as noncompensable. Thus, the Veteran did not meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). Moreover, the Veteran was, in fact, employed. An April 2019 correspondence from E.L. (Service Director at Aztec Chevrolet) reflects that the Veteran was hired in October 2008 (at the age of 73) to be a part-time driver/porter. He also had other daily duties, such as driving customers home or to work sites. Other duties included daily cleaning of the mechanic shop area, restrooms, offices, and customer waiting area. His duties consisted of a lot of walking, sweeping, mopping mechanic shop area, bending, lifting, and picking up hand tools of various sizes. E.L. stated that the Veteran worked from 7:30 a.m. to 1:30 or 2:00 p.m. (with half hour lunch break). E.L. stated that these were his work hours until December 2013. Consequently, it appears that the Veteran was not only able to work, but that he was able to perform a relatively physically demanding job. There is no evidence that the Veteran’s disabilities would have prevented him from performing sedentary work. In sum, prior to December 2013, there is no persuasive evidence of record demonstrating that the Veteran’s service-connected disabilities alone rendered him unable to obtain and retain substantially gainful employment, nor is the evidence in a state of equipoise on that question. As such, an effective date of 2008 is not warranted. In the Veteran’s May 2020 Brief, he argued that he worked in a “protected environment” from at least December 2013, “when the Veteran’s hours were reduced until he last worked in October 2015.” On this point, the Board agrees. In the aforementioned statement from E.L., he stated that in December 2013, the Veteran requested shorter hours and lighter work, because his disabilities were too much for the job. Lighter duties and few hours were granted by the Veteran’s employer. In December 2013, the Veteran’s service-connected disabilities included bilateral hearing loss, evaluated as 50 percent disabling; posttraumatic headaches, evaluated as 40 percent disabling; status post excision ingrown bilateral toenails with hallux rigidus and scar, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; residuals of an appendectomy, evaluated as 0 percent disabling; and onychomycosis and dyshidrosis of the toenails of both feet, evaluated as 0 percent disabling. His combined rating was therefore 70 percent. See 38 C.F.R. § 4.25. Thus, the Veteran met the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). Considering the Veteran’s 70 percent schedular rating, the October 2016 Vocational Assessment, and most importantly, the April 2019 statement from the Veteran’s employer (E.L.), the Board finds that a TDIU is warranted effective December 1, 2013. REASONS FOR REMAND The issue of entitlement to a compensable rating for onychomycosis and dyshidrosis of the toenails of both feet is remanded. The Board denied this claim in August 2012. Pursuant to a March 2013 Joint Motion for Remand (JMR), the claim was remanded to the Board because it failed to address evidence suggesting the possibility of an extraschedular rating. Specifically, the parties to the JMR cited a September 2011 statement from Dr. L.A.R. in which he stated that the Veteran cannot stand for long periods of time and cannot wear regular shoes as a result of feet and toes that are painful all the time secondary to cracking of the skin and difficulty with abnormal nails. The Board remanded the claim in January 2014, April 2017, and July 2019. Each time, the Board explicitly instructed the RO that “The AOJ must consider whether the Veteran is entitled to an extra-schedular rating under 38 C.F.R. § 3.321(b) when readjudicating the claim for a compensable rating for dyshidrosis and onychomycosis of the toenails of both feet.” The RO still has not complied with this instruction. To the contrary, in its April 2020 supplemental statement of the case, the RO explicitly stated that it did not consider entitlement to an extraschedular rating. Moreover, the basis for not considering it was the contention, “There was no medical evidence of record showed no complaints or treatment for onychomycosis and dyshidrosis of the toenails of both feet.” Once again, the Board notes that the failure to consider whether an extraschedular rating is warranted is precisely why the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s August 2012 decision. Moreover, contrary to the RO’s assertion that there is no medical evidence of record showing complaints or treatment for onychomycosis and dyshidrosis of the toenails of both feet, the parties to the JMR explicitly pointed out the relevant evidence (a September 2011 statement from Dr. L.A.R.). The United States Court of Appeals for Veterans Claims (Court) in Stegall v. West, 11 Vet. App. 268 (1998) held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Consequently, the Board must remand the claim for compliance with prior remand instructions. The matter is REMANDED for the following action: The AOJ must consider whether the Veteran is entitled to an extra-schedular rating under 38 C.F.R. § 3.321(b) when readjudicating the claim for a compensable rating for dyshidrosis and onychomycosis of the toenails of both feet. Attention should be paid to the September 2011 statement from Dr. L.A.R. when considering whether an extraschedular rating is warranted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.