Citation Nr: 21029079 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-00 866 DATE: May 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. REMANDED Entitlement to service connection for gout, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for degenerative arthritis of the thoracic spine, secondary to service-connected disabilities is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities is remanded. Entitlement to a disability rating in excess of 30 percent for bilateral pes planus is remanded. Entitlement to a disability rating in excess of 10 percent for a left ankle strain is remanded. Entitlement to a disability rating in excess of 10 percent for a right ankle strain with plantar spur of right calcis is remanded. Entitlement to a disability rating in excess of 10 percent for a left knee strain with chondromalacia is remanded. Entitlement to a disability rating in excess of 10 percent for a right knee strain with chondromalacia is remanded. Entitlement to a compensable disability rating for chronic urticaria is remanded. Entitlement to a compensable disability rating for venereal warts is remanded. INTRODUCTION The Veteran served on active duty from March 1990 to March 1998. In March 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. When this case was previously before the Board in September 2019, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. FINDING OF FACT In a letter dated December 2019, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability; more than a year has passed since he was sent this letter, and he has not submitted the requested evidence and information. CONCLUSION OF LAW By failing to submit requested information and/or forms for critical evidence needed to properly adjudicate his claim for a TDIU, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The issue of a TDIU was denied in a December 2012 rating decision, which the Veteran subsequently appealed. In September 2019, the Board remanded for additional evidentiary development regarding a claim for TDIU, including a request to the Veteran to complete a VA Form 21-8940 in support of a claim for TDIU. The Veteran was sent a letter in December 2019, requesting him to complete such form, and to date he has failed to do so. VA Form 21-8940 requests information regarding the Veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the Veteran left his last job, and whether the Veteran has attempted to obtain employment since he became too disabled to work. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158 (a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158 ); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158 (a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of his failure to cooperate the Veteran has abandoned his claim for a TDIU. As such, the Board finds the appeal must be denied. Id. REASONS FOR REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran's remaining claims are decided. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Initially, the Board notes that by way of an August 2014 correspondence, the Veteran's prior representative indicated the Veteran has painful scarring associated with his service-connected skin disabilities. Though the September 2019 remand requested appropriate examinations be performed to fully assess the Veteran's skin disabilities, to date the Veteran has not been provided a scars examination to assess his claims of painful scars. Next, in the course of the September 2019 remand, the Board requested examinations and medical opinions to address the Veteran's claims for service connection for gout, a thoracolumbar spine disability, and hypertension. The Board asked the examiner to comment on whether the Veteran's obesity may have been caused by his service-connected disabilities, and if so, whether his obesity then caused or contributed to the development of his gout, thoracolumbar spine disability, or hypertension. The Board also asked the examiner to provide opinions as to whether the Veteran's gout, thoracolumbar spine disability, or hypertension were incurred in service, caused by his service-connected disabilities, or aggravated by his service-connected disabilities. Following March 2020 VA examinations the examiner provided merely conclusory opinions addressing the Veteran's claimed gout, thoracolumbar spine disability, and hypertension. She provided additional addendum responses in October 2020, but again wholly failed to provide factual assessments or explain how or why she came to her conclusions. Additionally, the examiner appears to have ignored the Veteran's reports relative to the above-claimed disabilities. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, examiners simply are not free to ignore a veteran's statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board notes that in the course of the September 2019 remand, the Board requested examinations to assess the severity of the Veteran's service-connected bilateral knee, bilateral ankle, and bilateral pes planus disabilities. The Board specifically indicated that to be considered adequate, a musculoskeletal examination must include an assessment of the veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). However, the March 2020 VA examiner failed to provide these critical evaluative criteria, and as such, a remand is again required. In this respect, the Board does note the Veteran recently submitted a claim for increased ratings for his service-connected bilateral knee, bilateral ankle, and bilateral pes planus disabilities in March 2021; however, the evaluation of these disabilities are presently in appellate status. The Veteran then submitted disability benefit questionnaires addressing these disabilities in April 2019, which were completed by an Obstetrician-Gynecologist. The diagnoses and findings provided by this clinician differ vastly from those provided by prior VA examiners. The Veteran provided a statement accompanying these examination reports, which indicates he did not wish to be scheduled for any additional VA examinations with respect to his claimed increases; however, he did not indicate he would not attend additional examinations with respect to his pending appeals. Based on the insufficiencies noted in the March 2020 VA examinations, and the considerably incongruent findings provided by a private women's health specialist, the Board finds VA examinations should be obtained from an Orthopedic Specialist prior to final adjudication of the above-noted appeals. However, based on his prior statements indicating he does not wish to attend additional examinations, the Veteran should be contacted prior to scheduling these examinations. He should be notified that with respect to his appeals for increased ratings, the failure to report for scheduled examinations without good cause may result in the denial of the claims. See 38 C.F.R. § 3.655. In this regard, the Board observes VA's duty to assist a Veteran in developing the facts and evidence pertinent to his or her claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, this case is REMANDED for the following actions: 1. Contact the Veteran to determine whether he is ready, willing, and able to report for additional VA examinations deemed necessary prior to final adjudication of his above-noted appeals. 2. If so, afford the Veteran a VA examination by a clinician with sufficient expertise, who has not previously examined the Veteran, to determine the nature and etiology of the Veteran's claimed hypertension. All pertinent evidence of record must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. Based on a review of the evidence of record, lay statements, and examination results, the examiner should opine as to whether the Veteran's hypertension at least as likely as not (a 50 percent probability or greater): a) incurred in service or is otherwise etiologically related to the Veteran's active service, to specifically include as result of multiple elevated blood pressure readings during service; b) manifest to a compensable degree within a year from the Veteran's separation from service; c) was proximately due to service-connected disabilities, to specifically include his service-connected sleep apnea, bilateral pes planus, bilateral ankles, and bilateral knees disabilities; or d) was aggravated to any degree by service-connected disabilities, to specifically include his service-connected sleep apnea, bilateral pes planus, bilateral ankles, and bilateral knees disabilities. The examiner is also asked to state whether it is at least as likely as not (a 50 percent probability or greater) that: a) service-connected disabilities caused the Veteran to become obese; and b) the obesity was a substantial factor in causing or aggravating the Veteran's hypertension. For these opinions, the examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including events and symptoms. The examiner is asked to consider and expressly discuss the Veteran's reports relative to the etiology of the claimed disability. The examiner must also provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case and state whether the inability to provide the required opinions is based on a lack of knowledge among the medical community at large. 3. Also, afford the Veteran a VA examination by an Orthopedic Specialist with sufficient expertise, who has not previously examined the Veteran, to determine the nature and etiology of the Veteran's claimed gout and thoracolumbar spine disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. Based on a review of the evidence of record, lay statements, and examination results, the examiner should opine as to whether the Veteran's gout at least as likely as not (a 50 percent probability or greater): a) was incurred in service or is otherwise etiologically related to the Veteran's active service, to specifically include as result of in-service reports of swollen and painful joints in the bilateral knees and feet; b) is proximately due to service-connected disabilities, to specifically include his service-connected bilateral pes planus, bilateral ankles, and bilateral knees disabilities; or c) was aggravated beyond its natural progression by service-connected disabilities, to specifically include his service-connected bilateral pes planus, bilateral ankles, and bilateral knees disabilities. Additionally, the examiner is asked to state an opinion with respect to whether any diagnosed thoracolumbar spine disability, to include degenerative arthritis, degenerative disc disease, or strain, at least as likely as not (a 50 percent probability or greater): a) was incurred in service or is otherwise etiologically related to the Veteran's active service, to specifically include as result of in-service reports of swollen and painful joints; b) manifest to a compensable degree within a year from the Veteran's separation from service; c) is proximately due to service-connected disabilities, to specifically include his service-connected bilateral pes planus, bilateral ankles, and bilateral knees disabilities; or d) was aggravated beyond its natural progression by service-connected disabilities, to specifically include his service-connected bilateral pes planus, bilateral ankles, and bilateral knees disabilities. The examiner is also asked to state whether it is at least as likely as not (a 50 percent probability or greater) that: a) service-connected disabilities caused the Veteran to become obese; and b) the obesity was a substantial factor in causing or aggravating the Veteran's gout or thoracolumbar spine disability. For these opinions, the examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including events and symptoms. The examiner is asked to consider and expressly discuss the Veteran's reports relative to the etiology of the claimed disabilities. The examiner must also provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case and state whether the inability to provide the required opinions is based on a lack of knowledge among the medical community at large. 4. Afford the Veteran a VA examination by the Orthopedic Specialist to fully assess the severity of the Veteran's service-connected bilateral knee, bilateral ankle, and bilateral pes planus disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. Additionally, the examiner is asked to provide a retrospective opinion regarding the findings referable to the Veteran's service-connected bilateral ankles and bilateral knee disabilities rendered at the August 2012 VA examinations. With regard to these examinations, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to do so, he or she should explain why. Further, the examiner should offer a retrospective opinion as to whether additional loss of function or range of motion during flare-ups has been present throughout the appeal period. If the examiner is unable to do so, he or she must make clear that all procurable data was considered (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but he or she, as well as any member of the medical community at large, could not provide such an opinion without resorting to mere speculation. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 5. Finally, schedule the Veteran for an examination by an appropriate clinician, who has not previously examined the Veteran, to determine the current severity of his service-connected venereal warts and chronic urticaria. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. In this respect the examiner is specifically asked to complete both a skin disease and scars assessment, as the Veteran has asserted he experiences painful scarring as a result of his service-connected skin disabilities. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.