Citation Nr: 21028999 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-44 312 DATE: May 12, 2021 REMANDED Entitlement to an increased disability rating above 10 percent prior to February 19, 2019, for lumbar spine degenerative joint disease (DJD) is remanded. Entitlement to an increased disability rating above 20 percent since February 19, 2019, for lumbar spine DJD is remanded. Entitlement to an increased disability rating above 10 percent for residuals of a left distal tibia fracture with left ankle DJD is remanded. Entitlement to a compensable disability rating prior to October 9, 2019, for residuals of a right heel fracture is remanded. Entitlement to an increased disability rating above 10 percent since October 9, 2019, for residuals of a right heel fracture is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1970 to July 1974 and May 1984 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in May 2018 and July 2020. In February 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54. In this case the Veteran asserted that his disability of the feet prevented him from working. The Board interprets this statement as an indication that the Veteran feels he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability at issue on appeal. Accordingly, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. 1. Lumbar spine disability 2. Residuals of a left distal tibia fracture with left ankle DJD In its July 2020 remand, the Board directed the AOJ to provide the Veteran a VA medical opinion that addressed the frequency, severity, duration, and functional loss of the Veteran's lumbar spine and left distal tibia fracture with left ankle DJD flare-ups. The July 2020 remand stated that the February 2019 VA examiner noted the Veteran's report of flare-ups, but failed to provide sufficient information regarding their frequency, severity, and duration. The Board recognizes that the Veteran denied flare-ups of the lumbar spine and the left distal tibia fracture with left ankle DJD at the November 2020 VA examinations. However, in November and December 2020 opinions, the November 2020 VA examiner stated the previous February 2019 VA examiner was correct in documenting that flare-ups did not occur in the Veteran's lumbar spine and left distal tibia fracture with left ankle DJD. In fact, the February 2019 VA examiner did state the pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups in the Veteran's lumbar spine and left distal tibia fracture with left ankle DJD. Accordingly, the November and December 2020 VA opinions are inadequate for decision making purposes and do not substantially comply with the Board's September 2016 remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). On remand the VA examiner must reconcile her November and December 2020 opinions with the February 2019 VA examiner's report that pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups in the Veteran's lumbar spine and left distal tibia fracture with left ankle DJD. 3. Residuals of right heel fracture The Veteran underwent a VA foot examination in November 2020 to determine the nature and severity of his residuals of right heel fracture. The November 2020 VA examiner stated the Veteran's right heel fracture was resolved. However, the November 2020 VA examiner noted diagnoses of right foot Morton's neuroma, plantar fasciitis, hallux limitus, pes cavus, and metatarsalgia. As the Board is unable to make a medical determination about the significance of these reported symptoms, the claim must be remanded for an addendum opinion which clarifies whether these diagnoses are properly considered residual symptoms of the Veteran's service connected residuals of right heel fracture. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 4. TDIU The Board notes that the Veteran has reported that his service-connected disabilities, such as his feet, prevent him from maintaining gainful employment. Specifically, the Veteran reported that he was forced to retire from the Post Office due to his feet. As such, a request for a TDIU was reasonably raised by the record. With respect to the Veteran's TDIU claim, the Veteran has not submitted a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) and has not otherwise provided a detailed history of his employment and educational background. As such, the Board finds that a remand is warranted to solicit a completed VA Form 21-8940 from the Veteran detailing his work history, along with any other evidence relevant to the issue of entitlement to a TDIU. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to reconcile the November and December 2020 opinions, which stated the February 2019 VA examiner was correct in documenting that flare-ups did not occur in the Veteran's lumbar spine and left distal tibia fracture with left ankle DJD, with the February 2019 VA examiner's report that stated pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups in the Veteran's lumbar spine and left distal tibia fracture with left ankle DJD. 2. Obtain an addendum opinion to clarify if the November 2020 diagnoses of right foot Morton's neuroma, plantar fasciitis, hallux limitus, pes cavus, and metatarsalgia are residuals symptoms of the Veteran's service-connected residuals of right heel fracture. 3. Ask the Veteran to complete and submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.