Citation Nr: 21027951 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 15-31 585 DATE: May 7, 2021 ORDER The appeal for entitlement to service connection for a bilateral foot disability, to include the residuals of frost bite, is dismissed. REMANDED Entitlement to an initial disability rating in excess of 10 percent for left wrist strain is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT While in remand status, a December 2020 rating decision granted entitlement to service connection for flat feet, left foot hallux valgus, and right foot hallux valgus; thus, granting the Veteran's claim of entitlement to service connection for a bilateral foot disability, to include the residuals of frost bite. CONCLUSION OF LAW As the benefit sought on appeal with respect to the matter of service connection for a bilateral foot disability has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a bilateral foot disability. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Army from August 1979 to January 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In March 2019, the Board remanded the instant issues on appeal for further development. While the matter was in remand status, the RO granted the claims of entitlement to service connection for flat feet, left foot hallux valgus, and right foot hallux valgus in a December 2020 rating decision, resolving the claim of entitlement to service connection for a bilateral foot disability, to include the residuals of frost bite. The remaining issues have returned to the Board for further appellate consideration. As previously indicated in March 2019, the Board notes that the Veteran's claim of entitlement to service connection for residuals of frost bite of the bilateral feet was broadened to that of entitlement to service connection for a bilateral foot disability, to include the residuals of frost bite. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (regarding expansion of the scope of mental health disability claims). The Board notes that, while the appeal was in remand status, the RO denied the issue of entitlement to a TDIU in the December 2020 rating decision, and the Veteran did not appeal this decision. However, this issue remains in appellate status as part and parcel of his continued appeal seeking an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, entitlement to a TDIU is properly before the Board. Dismissal Entitlement to service connection for a bilateral foot disability, to include the residuals of frost bite, is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, a December 2020 rating decision granted entitlement to service connection for flat feet, left foot hallux valgus, and right foot hallux valgus. This action resolved the claim for service connection for a bilateral foot disability, to include the residuals of frost bite. As a result, no case or controversy regarding the matter of service connection for a bilateral foot disability, to include the residuals of frost bite, remains, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105(d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to this matter, and the matter is dismissed. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As an initial matter, these claims were previously before the Board in March 2019, at which time they were remanded for further development. However, the Veteran apparently did not receive a copy of the Board's remand with the development directives. A copy of that remand was mailed to the Veteran's address of record in Georgia; however, at that time, the Veteran had been traveling and staying between two residences and the Veteran was not residing at the Georgia location at that particular time. Consequently, that remand was returned as undeliverable. Following the initial attempt to mail the prior Board remand to the Veteran, an April 2020 report of general information indicates that the Veteran, at that time, was residing at the Georgia address. The record does not reflect that there were subsequent attempts to mail the March 2019 Board remand to his current Georgia address. Thus, a copy of the Board's prior March 2019 remand, along with this current remand, must be mailed to the Veteran at his current residence in Georgia. 1. Entitlement to an initial disability rating in excess of 10 percent for left wrist strain is remanded. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the March 2019 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran a VA wrist examination to assess the current severity of his service-connected left wrist strain, to include compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In July 2020, the Veteran was afforded a VA wrist examination. While the examination report indicates that range of motion testing was conducted in passive motion, weight-bearing, and non-weight-bearing, the examiner did not provide the range of motion measurements of either wrist. The examiner did not provide an explanation as to why the measurements were not provided. Therefore, the examination did not comply with the requirements in Correia, 28 Vet. App. at 168. Accordingly, to ensure compliance with the March 2019 remand directives and that the record reflects the current severity of the Veteran's left wrist disability, a remand is required for a VA wrist examination. See Stegall, 11 Vet. App. at 271. 2. Entitlement to a TDIU is remanded. As the Veteran's claim for a TDIU is inextricably intertwined with the current increased rating claim, the Board also remands the claim for entitlement to a TDIU, as it must be held in abeyance pending adjudication of the increased rating claim. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). Additionally, on remand, the Board finds that clarification is needed with regard to the Veteran's employment history and current status. In July 2020, the Veteran provided a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. However, the Veteran did not complete in full the section requesting employment history. Thus, the Board finds that, on remand, affording the Veteran a final opportunity to provide a VA Form 21-8940 completed in full would be helpful in determining his employment history and income. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Send a copy of the Board's prior March 2019 remand and this remand to the Veteran's current address. 2. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 3. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, so as to afford the Veteran with a final opportunity to provide a description of his employment history. 4. Then, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his left wrist disability. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disability. The examiner should provide all information required for rating purposes, to specifically include range of motion of each wrist in active motion, passive motion, weight-bearing, and non-weight-bearing. Further, the examiner must indicate if movement is limited by pain, and if so, at what point. The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts that he is unable to perform range of motion testing due to pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. The examiner should also review the VA examinations containing range of motion findings pertinent to the Veteran's left wrist conducted during the course of the appeal. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran's functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.