Citation Nr: 21024591
Decision Date: 04/23/21	Archive Date: 04/23/21

DOCKET NO. 16-29 611
DATE: April 23, 2021

REMANDED

A rating higher than 20 percent for residuals of osteomyelitis of the left ankle is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1971 to August 1991; he died in October 2013. The Appellant is his surviving spouse. 

In November 2018, the Board of Veterans’ Appeals (Board) remanded the claim for an increased rating for left ankle osteomyelitis to the agency of original jurisdiction (AOJ). The Board directed the AOJ to obtain a retrospective opinion on the severity of the disability from 2011 onward, and provided detailed instructions for the examiner. 

In particular, the Board instructed the examiner to “expressly determine if there are findings related to the service-connected left ankle osteomyelitis, including limitation of motion, ankylosis, osteomyelitis with constitutional symptoms, or osteomyelitis with definite involucrum or sequestrum without or without discharging sinus.” 

The Board also instructed the examiner to “expressly determine whether functioning [was] so impaired in the left lower extremity that amputation with prosthesis [would have equally served] the Veteran, due solely to the service-connected left ankle residuals of osteomyelitis.”

The AOJ obtained opinions in May 2019 and October 2020. Neither examiner expressly determined whether the Veteran’s disability resulted in limitation of motion, ankylosis, osteomyelitis with constitutional symptoms, or osteomyelitis with definite involucrum or sequestrum without or without discharging sinus. Neither examiner expressly determined whether functioning was so impaired in the left lower extremity that amputation with prosthesis would have equally served the Veteran. Because the examiners failed to comply with the Board’s specific remand instructions, neither opinion is adequate.

Another remand is necessary to ensure compliance with the Board’s previous instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes the effort to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate).

The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file.

The matter is REMANDED for the following action:

1. Obtain a retrospective opinion on the severity of the Veteran’s service-connected residuals of osteomyelitis, left ankle, from 2011 onward. After reviewing the claims file, the examiner must address the following:

(a.)  Did the Veteran’s disability result in limitation of motion, ankylosis, osteomyelitis with constitutional symptoms, or osteomyelitis with definite involucrum or sequestrum without or without discharging sinus? 

(b.) Was functioning was so impaired in the left lower extremity that amputation with prosthesis would have equally served the Veteran? 

2. Review the medical opinion above to ensure substantial compliance with the Board’s directives. Take any necessary corrective action.

3. Readjudicate the claim. If it remains denied, issue a supplemental statement of the case, and allow the Appellant and her representative the opportunity to respond. Then return to the Board for further appellate review.

 

 

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D.Z. Wall, 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.