Citation Nr: 21007437 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-58 051 DATE: February 9, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a left foot disability, to include pes planus, is remanded. Entitlement to a rating in excess of 20 percent for a right foot disability, to include pes planus, is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from December 1981 to May 1982. In April 2019, a Veterans’ Law Judge other than the undersigned issued a Board of Veterans’ Appeal (Board) decision denying the claims for higher ratings for left and right foot disabilities. The Veteran appealed the April 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent November 2019 order the Court adopted the parties of Joint Motion for Remand (JMR) and vacated and remanded the April 2019 Board decision. In May 2020, the Board remanded the above rating claims for additional development to address the concerns raised by the JMR. In this regard, the Board’s earlier decision and remand did not include a claim for a TDIU. However, upon further review of the record to include the concerns raised by the Veteran’s attorney in the JMR regarding the problems his service-connected disabilities caused with employment, the Board finds that the above rating claims also includes a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to ratings in excess of 20 percent for left and right foot disabilities are remanded. As to the claims for ratings in excess of 20 percent for left and right foot disabilities, the Board remanded these issues in May 2020 to, among other things, obtain the following: a. range of motion studies in both active and passive motion, in weight-bearing and non-weight-bearing in order to comply with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016); b. an “opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up and after repeated use over time [in order to comply with the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017)];” and c. “[i]n order to comply with the JMR, the examiner should attempt to reconcile the inconsistent opinions provided by the September 2017 VA examiner regarding the impact the left and right foot disabilities have on employment.” However, while the post-Remand record shows that the Veteran was provided a VA examination in September 2020, the examiner did not provide answers to any of the above three questions. Therefore, the Board finds that a remand to provide the Veteran with another VA examination to obtain answers to these questions is required. See 38U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.); 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); Stegall v. West, 11 Vet. App. 268 (1998) (holding that, where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38U.S.C.§5103A(b). Entitlement to a TDIU is remanded. As noted above, the record raises a claim for a TDIU. See Rice, supra. However, the Board finds that this issue is not ready for appellate review because it is inextricably intertwined with the above remanded rating claims (see Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)) as well as because from the existing record the Board is not able to ascertain when, if ever, they prevented him from obtain and maintaining substantial gainful employment. See 38 C.F.R. § 4.16, Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a remand is required to obtain from the Veteran a fully executed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, so the Board has the needed information to adjudicate whether his service-connected disabilities prevent him from obtain and maintaining substantial gainful employment given his prior vocational history, work experience, and education. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, whether he continues to be unemployed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevents him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. Any help from the Veteran in obtaining this information would be appreciated. The form cited above is available on-line. The request should also notify the Veteran that his claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing at the VA Form 21-8940. 4. In order to comply with the JMR and the prior Remand, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his left and right foot disabilities. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: (a) The examiner should identify all left and right foot pathology found to be present during the pendency of the appeal. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. (c) In order to comply with the Court’s holding in Correia and the prior Remand, the left and right foot range of motion testing must be conducted in both active and passive motion, in weight-bearing and non-weight-bearing and the examiner must report whether the appellant experienced pain on passive motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case than, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) In order to comply with the Court’s holding in Sharp, the examiner should state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. In order to comply with the Court’s holding in Sharp and the prior Remand, the examiner based on the Veteran’s lay statements at the current examination and the other evidence of record must attempt to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up and after repeated use over time. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. In order to comply with the JMR and the prior Remand, the examiner must attempt to reconcile the inconsistent opinions provided by the September 2017 VA examiner regarding the impact the left and right foot disabilities have on employment. In this regard, and as noted in the JMR, while the “VA examiner answered ‘yes’ to the question ‘[i]s there pain, weakness, fatigability, or -2-incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time’ for both feet and opined that Appellant was ‘unable to stand or walk for extended periods of time…’ the examiner “… later opined that Appellant’s condition did not impact his ability to perform any type of occupation task (such as standing, walking, lifting, sitting, etcetera).” (Continued on the next page)   The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.