Citation Nr: 21011247 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-09 488 DATE: March 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 29, 2016 is denied. REMANDED Entitlement to a noninitial disability rating in excess of 20 percent for the Veteran’s service-connected degenerative joint disease of the right ankle with calcaneal spur is remanded. FINDING OF FACT The Veteran was substantially gainfully employed or capable of substantially gainful employment during the relevant period prior to July 29, 2016. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to July 29, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16; Harper v. Wilkie, 30 Vet. App. 356 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to September 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In July 2015, the Veteran presented sworn testimony before one of the undersigned Veterans Law Judges (VLJ) at a Board hearing. A second Board hearing was conducted in December 2020 before another of the undersigned VLJs. Both hearing transcripts have been associated with the Veteran’s electronic claims file. By law, VLJs who participate in hearings must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c)(2018); 38 C.F.R. § 20.604 (formerly 20.707). Appeals can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102(a) (2018). When a Veteran has been afforded a hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ must be assigned to the panel. The Court has interpreted 38 C.F.R. § 20.604 (formerly 38 C.F.R. § 20.707) as requiring that a veteran must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). Here, this was fully explained to the Veteran and his representative at the December 2020 Board hearing. On the record, the Veteran indicated that he did not desire a hearing before the third member of the decision panel. Accordingly, VA has complied with the requirements set forth in Arneson. 38 C.F.R. § 20.700(a). Entitlement to a TDIU prior to July 29, 2016 is denied. During the course of the Veteran’s appeal seeking a noninitial increased rating for his service-connected right ankle disability, he filed a May 2017 formal application seeking entitlement to a TDIU and alleged that his service-connected left hip disability prevented him from securing and following all forms of substantially gainful employment. In an August 2017 rating decision, the RO granted entitlement to a TDIU, effective July 29, 2016, the day following the Veteran’s last day of substantially gainful employment. At the December 2020 Board hearing, the Veteran testified that limitations from his service-connected right ankle disability affected his ability to perform his job duties, arguably raising a claim of entitlement to a TDIU during the period prior to July 29, 2016 that coincides with the appellate period for the present increased rating claim for his service-connected right ankle disability. See Harper, 30 Vet. App. at 362-63 (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). The evidence establishes that the Veteran was capable of substantially gainful employment during the period prior to July 29, 2016 that coincides with the appellate period for the present increased rating claim for the Veteran’ service-connected right ankle disability. In the May 2017 VA form 21-8940, the Veteran indicated that he worked 40 hours per week prior to January 2011 for his state correctional department, and beginning in May 2011 until July 28, 2016, he worked 42.5 hours per week for a sheriff’s department. His monthly earnings during this time period well-exceeded the federal poverty threshold, and there is no indication that his full-time employment was marginal in nature or performed in a protected work environment. The Board notes that the Veteran was briefly unemployed between January 2011 and May 2011 while he switched jobs; however, there is no probative evidence indicating his service-connected disabilities prevented him from securing substantially gainful employment during this period, as evidenced by the fact that he soon reinitiated full time employment in a similar occupation. At the December 2020 Board hearing, the Veteran testified that he experienced ankle impairment during his employment, but he only occasionally missed work for 2- or 3-day periods due to ankle pain, but “[n]ever anything longer than that.” Accordingly, the most probative evidence of record establishes that the Veteran was substantially gainfully employed or capable of substantially gainful employment for the entire period prior to July 29, 2016 that coincides with the appellate period for the present increased rating claim for the Veteran’ service-connected right ankle disability. As such, the Veteran is not entitled to an effective date earlier than July 29, 2016 for the award of entitlement to a TDIU, and his appeal is denied. REASONS FOR REMAND Entitlement to a noninitial disability rating in excess of 20 percent for the Veteran’s service-connected degenerative joint disease of the right ankle with calcaneal spur is remanded. Although the Board regrets the additional delay in the adjudication of this claim, a remand is necessary to ensure compliance with prior Board remand directives and to further develop the record to allow for a full and fair assessment of the Veteran’s claim. This matter was last before the Board in November 2018, at which time it was remanded for the RO to request relevant disability records from the Social Security Administration (SSA) and for the RO to adjudicate the inextricably intertwined claim of entitlement to service connection for a right Achilles tendon disability. In February 2019, the Veteran responded indicating that he never filed for SSA disability benefits, but was instead receiving general SSA retirement benefits. In June 2019, the Veteran mailed in a letter from SSA confirming that he never applied for SSA disability benefits. In August 2019, the SSA responded to VA’s request for medical records and indicated they did not have any of the Veteran’s medical records in their possession. The Veteran was notified of the SSA response in August 2019. Accordingly, there has been substantial compliance with the November 2018 Board remand’s directive regarding the attainment of SSA disability records. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). In the November 2018 decision, the Board remanded the matter due to the RO’s failure to comply with the Board’s December 2015 remand directive requesting that the RO adjudicate a claim of entitlement to service connection for a right Achilles tendon disability as secondary to the Veteran’s service-connected degenerative joint disease of the right ankle with calcaneal spur, before proceeding with final adjudication of the increased rating claim, due to the potential for overlapping symptomatology. In the November 2018 decision, the Board clearly and unambiguously directed the RO to “[a]djudicate the Veteran’s claim for secondary service connection for his right Achilles tendon.” A review of the record establishes that the RO has not substantially complied with this remand directive. Stegall, supra. Instead of adjudicating the secondary service connection claim for a right Achilles tendon disability, as directed, the RO mailed the Veteran a May 2020 letter indicating that he was required to file his secondary service connection claim on the appropriate standardized form before the RO would take any further action on the matter. However, the RO has ignored that this secondary service connection claim was first raised in a written statement submitted with the April 2012 VA form 9, during a time when VA accepted informal claims. Prior to March 24, 2015, a claim was defined as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1 (p) (2014). The requirement for the use of a standardized form to initiate a claim did not become law until March 24, 2015. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Despite two requests from the Board, the RO has failed to adjudicate the Veteran’s secondary service connection claim for a right Achilles tendon disability, which is inextricably intertwined with the pending increased rating claim for the Veteran’s service-connected degenerative joint disease of the right ankle with calcaneal spur. The Board cannot proceed with final adjudication of the increased rating claim until the secondary service connection matter is resolved. Accordingly, the present increased rating claim must be remanded for corrective action, as the Veteran is entitled to substantial compliance with prior Board remand directives. See Stegall, 11 Vet. App. at 270-71. At the December 2020 Board hearing, the Veteran testified to his subjective belief that his service-connected degenerative joint disease in the right ankle with calcaneal spur has worsened in severity. The United States Court of Appeals for Veterans Claims has held that when a veteran alleges that a service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence which addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) Therefore, as the Veteran last underwent a VA examination for his service-connected right ankle disability in June 2018, more than two years ago, and he has suggested his symptoms have worsened, he should be afforded a new VA examination to assess the current nature, extent, and severity of his symptomatology. Lastly, the RO is requested to obtain any additional VA treatment records from January 2020 to the present. 38 C.F.R. § 3.159(c)(2) and (3). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2020 to the present. 2. Schedule the Veteran for a VA examination to assess the current severity of his service-connected degenerative joint disease of the right ankle with calcaneal spur. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 3. Following the completion of any necessary development, adjudicate the Veteran’s claim seeking entitlement to service connection for a right Achilles tendon disability as secondary to his service-connected degenerative joint diseases of the right ankle with calcaneal spur under the provisions of 38 C.F.R. § 3.310. [Continued on Next Page]   4. Then, readjudicate the Veteran’s claim seeking a noninitial rating in excess of 20 percent for his service-connected degenerative joint diseases of the right ankle with calcaneal spur. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals TBD To Be Determined Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.