Citation Nr: 21007048 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 09-04 384 DATE: February 8, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for the service-connected atrial septal defect, status post implantation of occlusion device, is remanded. Entitlement to an initial compensable rating for the service-connected deviated nasal septum, status post septoplasty and bilateral inferior turbinate cautery is remanded. Entitlement to an initial compensable rating for the service-connected residuals of left ankle sprain, status post Brostrom procedure, is remanded. Entitlement to service connection for a right eye disability is remanded. REASONS FOR REMAND The Veteran served on active duty as a cadet at the United States Air Force Academy from June 2000 to June 2004 and in the United States Air Force from June 2004 to May 2006. In April 2016, the Board of Veterans’ Appeals (Board) denied the claims on appeal. The Veteran appealed the April 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2016, the Court granted a joint motion for remand, in which the parties agreed that the record was not clear as to whether the Veteran was properly notified of his scheduled VA examinations for the disabilities on appeal. The claims were then remanded to the Board. In a July 2017 remand, the Board directed the Regional Office (RO) to schedule the Veteran for VA examinations in relation to the instant claims. Additionally, the Board directed the RO to associate with the claims file a copy of all notices sent to the Veteran regarding the scheduled examinations. In a December 2018 Supplemental Statement of the Case (SSOC), the RO indicated that the Veteran failed to attend VA examinations scheduled on November 24, 2017 and February 14, 2018. There was no indication that any notice was sent to the Veteran to inform him of the date and time of either examination. Further, the Veteran contended through his representative that he was not notified of the date and time of the examinations. Thus, in March 2019, the Board again remanded these claims, finding that the RO’s actions were incomplete and did not substantially comply with the July 2017 Board remand directives. The 2019 Board remand instructed the RO to schedule the Veteran for all appropriate examinations again, and to associate with the claims file a copy of all notifications sent to the Veteran, including the address where the notice was sent, for each examination. On remand, a November 2019 Exam Scheduling Request was associated with the claims file for the requested VA examinations. Then, however, Exam Scheduling Request Contention Cancellations were associated with the claims file on December 5, 2019, for the requested VA examinations. The cancellation forms either stated “no show” or “unable to contact Veteran” as the cancellation reason. An October 2020 SSOC called these cancellation documents “Notice of failure to report for VA examination[s],” but the record is unclear as to whether examinations were actually scheduled, as it appears they may not have been because VA was unable to contact the Veteran. Regardless, the RO failed to document notifications and communications sent, or made, to the Veteran in efforts to schedule VA examination, as directed by the 2019 Board remand. Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. For the above reasons, the RO failed to comply with the 2019 Board remand, and the Board has no recourse but to remand this claim again to ensure that the previously requested development is completed. See id. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner with the sufficient expertise to ascertain the severity and manifestations of the service-connected atrial septal defect, status post implantation of occlusion device. The claims folder must be made available to, and reviewed by, the examiner, and any indicated studies should be performed. The examiner is asked to complete indicated diagnostic tests and studies, to include a laboratory determination of metabolic equivalents (METs) by exercise testing, an electrocardiogram, an echocardiogram, and an X-ray study. With regard to the MET testing, the examiner must document the level of METs at which dyspnea, fatigue, angina, dizziness or syncope develops. If a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by the medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. The examiner should indicate whether the Veteran has: (a.) A workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray; OR (b.) More than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent; OR (c.) Chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope or; left ventricular dysfunction with an ejection fraction of less than 30 percent. The Veteran must be given adequate notice of the date and place of the requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. 2. Schedule the Veteran for a VA examination to determine the current level of severity of his service-connected deviated nasal septum, status post septoplasty and bilateral inferior turbinate cautery. The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. Any testing deemed necessary should be accomplished. The Veteran must be given adequate notice of the date and place of the requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of the service-connected residuals of left ankle sprain, status post Brostrom procedure. (a.) The examiner must test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the left and right ankle. If the examiner is unable to conduct the required testing or provide the requested estimates, he or she must clearly explain why that is so. (b.) Obtain from the Veteran a complete history of any flare-ups of his left ankle disability. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the disability. The examiner should describe the additional loss, to include in degrees, if possible or sufficiently explain why any additional functional loss cannot be described or quantified. The Veteran must be given adequate notice of the date and place of the requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. 4. Schedule the Veteran for an appropriate VA examination for his claim of service connection for a right eye disability. The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. The examiner should identify any and all right eye disorders the Veteran has had at any time since he filed his claim, including any transient muscle impingement and diplopia of the right eye. The examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed right eye disorder onset in the Veteran’s active service or is otherwise related to his active service. The Veteran must be given adequate notice of the date and place of the requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.