Citation Nr: 21014370
Decision Date: 03/12/21	Archive Date: 03/12/21

DOCKET NO. 12-18 257
DATE: March 12, 2021

REMANDED

Entitlement to an evaluation greater than 20 percent for chronic left ankle instability is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran had active service in the United Army from March 1980 to August 1982.  These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision. 

In August 2015, the Veteran testified at a hearing before a Veterans Law Judge (VLJ).  The transcript is of record.  A June 2017 letter informed the Veteran that the VLJ from the August 2015 hearing was no longer with the Board, and that he had to respond within 30 days if he wished to attend another hearing.  No response was received within 30 days; therefore, there is no hearing request pending.

The Board most recently remanded the appeal for further development in April 2019.  A remand is warranted.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

 

1. Entitlement to an evaluation greater than 20 percent for chronic left ankle instability is remanded.

Pursuant to the April 2019 Board remand, an addendum opinion was requested on whether the Veteran’s left ankle instability was characterized as slight, moderate, or severe.  Unfortunately, the examiner at the July 2019 VA contract examination did not address the severity of the ankle instability. The appeal is remanded for such an assessment.

Further, many VA medical records and examination reports were added to the file following the most recent supplemental statement of the case (SSOC) issued in July 2020. A waiver of this evidence is not of record, and it may be potentially relevant. Thus, an SSOC should be issued.

2. Entitlement to a total disability rating for compensation purposes based on TDIU is remanded.

The appeal for a TDIU inextricably intertwined with the increased rating claim being remanded.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Adjudication of the claim for TDIU is deferred at this time.

The matters are REMANDED for the following action:

1. Return the file to the July 2019 VA examiner, or other appropriate clinician for an addendum opinion. The examiner is to provide a retrospective assessment regarding the severity of the Veteran’s left ankle instability based on review of the medical and lay evidence in the claims file from August 2009, the date of the increased rating claim with a one-year ‘lookback.’  

The examiner should state whether the symptomatology and impairment of the Veteran’s left ankle instability is best categorized as slight, moderate, or severe? 

2. After the above development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU.  If the benefits sought are not granted, send the Veteran and his representative an SSOC and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

D. JOHNSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Jake Choi

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.