Citation Nr: 20042383 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 11-00 999 DATE: June 23, 2020 REMANDED The claim of entitlement to service connection for a right ankle disorder, as secondary to service-connected chronic right and left foot strain with metatarsalgia, is remanded. The claim of entitlement to a temporary total rating for convalescence following right ankle surgery, pursuant to 38 C.F.R. § 4.30, is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1968 to April 1970. The Veteran died in August 2011; the appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a November 2009 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied service connection for a right ankle disability secondary to a service-connected right foot condition, as well as denied a claim for a temporary total rating due to right ankle surgery, pursuant to 38 C.F.R. § 4.30. The Veteran disagreed with those denials, and this appeal ensued. After the Veteran’s death in August 2011, the appellant was deemed a proper substituted claimant in February 2015. See 38 U.S.C. § 5121A. In June 2015, the appellant testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In August 2015, the Board remanded the claims on appeal. In June 2017, the Board, inter alia, denied the service connection claim for right ankle disability, secondary to right foot strain with metatarsalgia, as well as denied a temporary rating for convalescence following right ankle surgery, pursuant to 38 C.F.R. § 4.30. The Veteran appealed the Board’s June 2017 denials to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the Court granted a Joint Motion for Partial Remand (Joint Motion) filed by representatives for both parties, vacating the Board’s June 2017 decision as to both denials, and remanded the claims for further proceedings consistent with the Joint Motion. In December 2018, the Board remanded the claims on appeal for further action consistent with the Joint Motion. . Unfortunately, the Board finds that still further agency of original jurisdiction (AOJ) action on the claim is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Pursuant to the Joint Motion, in the December 2018 remand, the Board directed the AOJ to obtain an opinion addressing whether the Veteran’s service-connected right and left foot strain with metatarsalgia caused or aggravated the Veteran’s claimed right ankle disability. The Board also requested that the opinion consider and discuss whether the right ankle disability was at least as likely as not caused or aggravated by the Veteran’s obesity/weight gain as a manifestation of the service-connected right and left foot strain. In doing so, the Board requested that the physician consider and discuss the October 2009 VA examiner’s statement that the Veteran’s left foot caused instability and ankle sprains, and the October 2009 and November 2016 VA examiners’ comments that the Veteran’s obesity contributed to his right ankle disability. In the February 2020 opinion, the physician provided a negative opinion and stated that the Veteran sustained a right ankle fracture as a result of a mechanical fall, which was an acute event and had a clear and unmistakable onset and etiology. He further stated there is no indication from his records that the Veteran’s service-connected foot condition contributed to or otherwise caused his fall and resulting right ankle condition. He also stated that there is no evidence that his right ankle condition, which had a clear onset and etiology, was aggravated by his foot condition, and there was no clinical evidence that this was aggravated by his obesity. The Board notes that the February 2020 addendum opinion is inadequate as it contains no rationale for its conclusion and did not address the pertinent medical records, as requested. See Stegall, supra. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In light of the above, the Board finds that another remand of this matter for further medical opinion—based on full consideration of the Veteran’s documented medical history and assertions, and supported by complete, clearly stated rationale—is warranted. See Stegall, supra; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Also, with respect issue of entitlement to a temporary total rating for convalescence following right ankle surgery, pursuant to 38 C.F.R. § 4.30, as noted by the parties to the Joint Motion, this issue is intertwined with the service connection claim, and, therefore, must also be remanded. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (explaining that, “in the interests of judicial economy and avoidance of piecemeal litigation,” claims that are “intimately connected” should be adjudicated together). Hence, this matter is being remanded, as well. While these matters are on remand, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The AOJ should also give the appellant another opportunity to provide additional information and/or evidence pertinent to the claims (to include regarding private (non-VA) treatment), explaining that she has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the matters on appeal. The matters are hereby REMANDED for the following action: 1. Send to the appellant and her attorney a letter requesting that the appellant provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record, to include, private (non-VA) medical records. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the appellant responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain an appropriate physician addendum opinion addressing the etiology of the late Veteran’s right ankle disorder. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated clinician, and the addendum opinion/examination report should reflect consideration of the Veteran’s/appellant’s documented medical history and assertions. Following review of all relevant evidence of record, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that that the disability was (a) caused or (b) aggravated (worsened beyond the natural progression) by the Veteran’s service-connected right and left foot strain with metatarsalgia. Both causation and aggravation must be addressed. In addressing the above, the physician should specifically consider and discuss whether the right ankle disability was at least as likely as not caused or aggravated by the Veteran’s obesity/weight gain as a manifestation of the service-connected right and left foot strain. If such aggravation is found, the physician must determine the level of severity of the right ankle disability before it was aggravated by the obesity/weight gain potentially caused by his service-connected right and left foot disabilities. In doing so, the examiner must look at medical records created before the onset of the aggravation. If no such records are available, the examiner must consider the earliest medical records created after the estimated date of onset of aggravation. In rendering the requested opinions, the physician must consider and discuss all medical and other objective evidence of record, to include the to include the October 2009 VA examiner’s statement that the Veteran’s left foot caused instability and ankle sprains, and the October 2009 and November 2016 VA examiners’ comments that the Veteran’s obesity contributed to his right ankle disability; as well as all lay assertions, to include the Veteran’s and the appellant’s assertions as to the nature, onset and continuity of the Veteran’s symptoms. The physician is advised that the late Veteran was competent to report his symptoms experienced, and the appellant is competent to report her observations of the Veteran, and such reports must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly stated rationale for the conclusions reached must be provided. 4. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 5. After completing the above-requested actions, and any additional action(s) deemed warranted, adjudicate the claims on appeal, considering all pertinent evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.