Citation Nr: 21006480
Decision Date: 02/04/21	Archive Date: 02/04/21

DOCKET NO. 14-34 953
DATE: February 4, 2021

REMANDED

Entitlement to an initial rating in excess of 20 percent for residuals of right ankle avulsion fracture with strain (right ankle disability) is remanded.

Entitlement to an initial rating in excess of 30 percent for bilateral pes planus with bilateral plantar fasciitis and heel spurs is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from August 1977 to August 1980.

In January 2018, the Board granted an initial 20 percent rating, but no higher, for a right ankle disability from November 28, 2012 to July 20, 2014, and denied an increased rating thereafter. The Board also granted an initial 30 percent rating for his bilateral pes planus condition from November 28, 2012, to October 24, 2013, and denied an increased rating thereafter.

The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 Memorandum Decision, the Court vacated the Board’s January 2018 decision and remanded the matter to the Board.

The Board remanded the claim in March 2020 for further development by the RO, as consistent with the Court’s Memorandum Decision. The case was returned to the Board for further appellate action.

1. Entitlement to an initial rating in excess of 20 percent for residuals of right ankle avulsion fracture with strain (right ankle disability) is remanded.

2. Entitlement to an initial rating in excess of 30 percent for bilateral pes planus with bilateral plantar fasciitis and heel spurs is remanded.

While the Board regrets the additional delay, another remand is necessary in this case.

The March 2020 Board remand directives instructed the RO to obtain the Veteran’s records from the State Correction Institute at Laurel Highlands in Somerset, Pennsylvania, as the Veteran was afforded medical treatment while incarcerated and as his period of incarceration coincides with the appellate period. However, this directive was not substantially complied with and these records were not obtained. The record shows that an attempt to obtain such records from the institute was made but the neither the Veteran nor his representative provided the necessary release. 

The Board will afford an additional opportunity for the Veteran and/or his representative to submit the release so that the RO may attempt to obtain those records. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); see also Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271.

The matters are REMANDED for the following action:

Obtain the Veteran’s records from the State Correction Institution at Laurel Highlands in Somerset, Pennsylvania. Ask the Veteran to complete a VA Form 21-4142 for such records. If such institute records are obtained or submitted by the Veteran, the records should be associated with the Veteran’s claims file. 

 

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Minaya, Associate 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.