Citation Nr: 21026268 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 09-40 299 DATE: April 30, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for healed fractures, right tibia and fibula, with right ankle degenerative joint disease is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1957 to June 1959. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2010, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in December 2010, May 2012, and September 2014 when it was remanded for further development. In an October 2015 decision, the Board denied a compensable rating for right tibia and fibula fracture residuals and remanded the other claims on appeal. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2016 Memorandum Decision, the Court vacated the Board’s October 2015 decision with respect to the right tibia and fibula fracture residuals and remanded the matter to the Board for further action. In October 2019, the matter was remanded by the Board for further development in order to comply with the directives of the September 2016 Memorandum Decision. The matter was most recently before the Board in April 2020 and July 2020, when it was remanded for further development. Healed Fractures, Right Tibia and Fibula, with Right Ankle Degenerative Joint Disease Although the Board sincerely regrets the necessity of another remand, the Board finds that the RO has not substantially complied with its July 2020 remand directives. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). As indicated in the previous remand, the Court, in the September 2016 Memorandum Decision, noted that in May 2012 the Board remanded the claim to determine the current severity of the Veteran’s disability and to review April 2008 x-rays if more recent tests were not obtained. While a March 2014 VA examiner reviewed the April 2008 x-ray report, which indicated that further evaluation with CT and/or MRI is recommended, no further testing was done, and the examiner failed to address why such testing was not necessary. The Court held that the Board failed to provide an adequate statement of reasons or bases for why the March 2014 VA examination was not returned for clarification. A December 2019 VA examiner stated, “x-rays on the day of the exam were not clinically indicated,” but provided no explanation as to why they were not clinically indicated and did not address conducting a CT scan or MRI. In May 2020, an opinion was obtained by a different VA clinician, who indicated that because degenerative ankle joint disease had been diagnosed in July 2005, no additional imaging was indicated for VA purposes but that it was not clear if sclerotic changes seen on the 2008 x-ray have been evaluated. The July 2020 remand indicated that no VA examination was scheduled and there was no explanation as to why one was not necessary and that there was still no clear explanation for why further testing was not conducted following the recommendation in the April 2008 x-ray report. Remand for a new VA examination was required. The examiner was directed to indicate if required testing was unable to be conducted or if he or she concluded that any required testing is not necessary in this case, he or she should clearly explain why that is so. The Veteran underwent a VA examination in January 2021. When describing the reason why x-rays were not needed or not performed, the examiner stated that “x-rays on the day of exam were not clinically indicated,” but did not explain why. To ensure substantial compliance with the Court’s September 2016 Memorandum Decision and the July 2020 remand directives, remand for an addendum opinion is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, updated VA treatment records should be obtained. Entitlement to TDIU Regarding the claim for entitlement to TDIU, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). Veterans who do not meet the percentage thresholds to satisfy the criteria for a schedular TDIU under 38 C.F.R. § 4.16(a) still may be entitled to a TDIU on an extraschedular basis under § 4.16(b) if the evidence shows that they are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. While the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, it must consider whether a remand for referral to VA’s Director of Compensation for such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In the Veteran’s VA Form 21-8940, he indicated that he was last employed in August 1996, and his service-connected traumatic arthritis, left ankle, healed fractures, right tibia and fibula with right ankle degenerative joint disease, and degenerative arthritis of the lumbar spine rendered him unable to continue working at that time. The Veteran was last employed for the railroad, and his highest level of education was four years of high school. In an October 2006 private medical record, it was indicated that the Veteran worked at National Steel and Great Lakes Steel and last worked with overhead cranes and in the cold mill and mobile equipment areas. Included in the record is a January 2011 VA examination which indicated that the Veteran’s left ankle disability had significant effects on occupational activities and would cause decreased mobility and problems with lifting and carrying. Regarding the lumbar spine, the examiner indicated that the Veteran would have decreased mobility and problems with lifting and carrying. An August 2014 correspondence from Western Wayne Physicians indicated that the Veteran’s left ankle disability resulted in long term pain and discomfort with associated limitations in activity such as swelling requiring elevation, limited mobility to short distances, difficulty doing chores, and back discomfort due to limping gait. A December 2019 VA examiner indicated that due to the Veteran’s right tibia and fibula condition, the Veteran was able to do medium work, which was described as exerting 20 to 50 pounds of force occasionally and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. A May 2020 examiner indicated that the Veteran could do sedentary work, as his ankle disabilities would limit prolonged standing/ambulation and likely limit the ability to work foot controls or pedals, especially repetitively. A January 2021 VA examiner indicated that the Veteran’s service-connected right tibia, fibula, and ankle disability impacted his ability to perform any type of occupational task. He was a crane operator, and it would affect his ability to walk, sit, and climb stairs. As there is an indication that the Veteran may not be able to secure and follow a substantially gainful occupation as a result of service-connected disabilities, considering his educational and employment background; a remand is warranted to refer the matter to VA’s Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). The Board notes that such a referral merely indicates that there is evidence sufficient to substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities and does not bind the Board to grant an extraschedular TDIU. Ray v. Wilkie, 31 Vet. App. 58 (2019). The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from January 2020 to the present. 2. After completion of the above development, return the claims file to the January 2021 VA examiner to request explanation from the examiner as to the statement that “x-rays on the day of exam were not clinically indicated.” The examiner should also explain why other diagnostic testing, including CT scan and MRI, was not performed. If the examiner was unable to conduct any such testing or concluded that it was not necessary, then an explanation for this conclusion must be provided. After a review of the claims file and a review of this remand, if the examiner determines that any such testing should be completed, along with another examination, then such should be scheduled. 3. Refer the case to the Director of Compensation Service for consideration of the issue of entitlement to extraschedular TDIU under 38 C.F.R. § 4.16(b). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.