Citation Nr: 21030603 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 14-19 519 DATE: May 19, 2021 REMANDED Entitlement to an increased evaluation for service-connected residuals of a right ankle sprain with degenerative joint disease and scars, status post ankle fusion surgery (hereinafter, service-connected right ankle disability), currently evaluated 20 percent disabling prior to May 17, 2013, and from September 1, 2013, to March 5, 2014, and 30 percent disabling from March 6, 2014, to the present, is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to March 15, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1979 to May 1982. This matter comes to the Board of Veterans' Appeals (Board) from a December 2010 rating decision by a VA Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with these determinations, and the present appeal ensued. In an August 2013 rating decision, the AOJ partially granted the Veteran's appealed issue seeking an increased evaluation for his service-connected right ankle disability; a temporary 100 percent evaluation for post-surgical convalescence was assigned 38 C.F.R. § 4.30 from May 17, 2013, to August 31, 2013, and the previously-assigned 20 percent evaluation was continued prior to and after this period. To that extent, this period is not included in the appeal, and the issue has been recharacterized accordingly. In a July 2014 rating decision, the AOJ, among other actions, granted a TDIU from March 15, 2014, and recharacterized the Veteran's service-connected right ankle disability, resulting in a partial allowance; the 20 percent evaluation was increased to 30 percent, effective from March 6, 2014. As neither of these awards represented a full grant of the benefits sought on appeal, these issues remained in appellate jurisdiction, and the Board has recharacterized such to reflect the staged evaluation and appeal period of consideration of entitlement to a TDIU. Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35, 38-39 (1993); Harper v. Wilkie, 30 Vet. App. 356 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). In March 2018, the Veteran presented oral testimony in support of his appeal at a Board hearing conducted by an undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of that hearing is of record. In July 2018, the Board remanded the matters currently on appeal, among others, for further evidentiary development and procedural actions. The Board's July 2018 remand directives and the subsequent actions of the AOJ will be discussed below. Due to an administrative error, the Veteran participated in a second Board hearing involving the same appealed issues in April 2019 that was conducted by another undersigned VLJ via videoconferencing equipment. A transcript of the April 2019 Board hearing is also associated with the Veteran's file. VLJs who conduct hearings must participate in making the final determination of a claim. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. Where, as in the present case, two VLJs hold hearings on the same issue(s), a three-judge panel is assigned, and the appellant must be afforded an opportunity for a third hearing before the third VLJ who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). In a January 2020 letter, the Board afforded the Veteran the opportunity to participate in a third Board hearing regarding these matters; however, in a February 2020 statement, he declined to participate in another Board hearing. In August 2020, the Board remanded these appealed issues, among other, to the AOJ to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's August 2020 remand directives and the subsequent actions of the AOJ will be discussed in detail below. By a February 2021 rating decision, the AOJ established service connection for disabilities of the right hip and right knee, which had been subject to the Board's August 2020 remand. As such, the Veteran's appeal regarding those issues has been abrogated and will be discussed no further. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). In a concurrently issued Supplemental Statement of the Case (SSOC), the AOJ continued to deny the issues remaining on appeal, and they have been recertified and transferred to the Board for additional appellate consideration. Preliminary note The Board observes that the notice letter and materials accompanying the February 2021 SSOC included information concerning the Veteran's right to appeal the issue addressed in the SSOC under the Appeals Modernization Act (AMA), to include via the AOJ's Supplemental Claim lane, and he was provided an appropriate VA Form prescribed by the Secretary for this purpose (a VA Form 20-0995). In March 2021, within the appropriate time period for filing such, the Veteran's private attorney submitted a completed VA Form 20-0995 reflecting the Veteran's wishes to withdraw his "legacy" appeal of these issues in favor of pursuing such under the AMA via the AOJ's Supplemental Claim Lane. In a letter issued later that month, the AOJ notified the Veteran and his private attorney that the AMA election could not be accepted because "[T]he issue(s) you are claiming are already on an appeal." The propriety of the AOJ's rejection of this election and the provided explanation are beyond the Board's purview; however, it appears that such an election is possible if filed in the appropriate place and in a timely manner, as was the case here. Indeed, the AOJ's issuance of the VA Form and associated instructions for the completion of such in connection with the issuance of an SSOC, the sole purpose of which is to readjudicate issues in appellate status, connote the possibility of opting appealed issues into the AMA. Notwithstanding the above, the issues readjudicated by the AOJ in the February 2021 SSOC are properly before the Board within VA's "legacy" appeal system, and this remand will be promulgated under that system. If the Veteran and/or his private attorney wish to opt into the AMA after completion of the Board's remand directives and the readjudication of the appealed issues by the AOJ, they are advised to pay particular attention to the "OPT-IN from SOC/SSOC" check box in item 13 of the VA Form 20-0995, as leaving such blank may lead to another ineffective AMA election attempt. 1. Entitlement to an increased evaluation for a service-connected right ankle disability, currently evaluated 20 percent disabling prior to May 17, 2013, and from September 1, 2013, to March 5, 2014, and 30 percent disabling from March 6, 2014, to the present, is remanded. In pertinent part, the Board's August 2020 remand directed that the AOJ provide the Veteran a contemporaneous VA examination of his right ankle and obtain a retrospective medical opinion addressing the Veteran's additional functional impairment, expressed in degrees of limited motion of the right ankle, during a flare-up of symptoms at the time of a May 2017 VA examination. The Veteran was provided a VA ankle examination for these purposes in January 2021, and this examination report reflects that the Veteran denied experiencing current flare-ups of right ankle symptoms. The January 2021 VA examination is devoid of any retrospective opinion concerning the Veteran's additional limitation of right ankle motion at the time of the May 2017 VA examination. Unfortunately, the Veteran's lack of current right ankle flare-ups does not obviate the VA examiner's responsibility to provide the requested retrospective opinion regarding the May 2017 VA examination. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017); Chotta v. Peake, 22 Vet. App. 80 (2008). In light of above, the Board concludes that the August 2020 remand directive regarding this issue have not been substantially completed, and thus, another remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 2. Entitlement to a TDIU prior to March 15, 2014, is remanded. In August 2020, the Board remanded this appealed issue to ensure that the VA had the benefit of review of the Veteran's complete Social Security Administration (SSA) file, to specifically include the transcript of an April 2012 hearing with an SSA Administrative Law Judge with testimony from a named vocational expert. The AOJ contacted the SSA later in August 2020 and received several records in reply; however, the transcript from the April 2012 SSA hearing was not among the records received by VA. In sum, it does not appear that the Veteran's complete SSA file was requested or obtained by the AOJ, as per the Board's August 2020 remand directive. There is no finding by the SSA or the AOJ that the April 2012 SSA hearing transcript has been destroyed or is otherwise unavailable for review. As such, another remand is necessary to seek and obtain this outstanding, pertinent evidence from the SSA. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertaining to the Veteran. 2. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated him for the disabilities subject to the issues being remanded. After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 3. The AOJ must contact the Social Security Administration (SSA) and request a complete copy of the Veteran's complete SSA file. *The Board is particularly interested in the transcript of the April 2012 SSA hearing, to include the testimony from the private vocational expert. If the search for such records has negative results, the Veteran's VA file must be properly documented as to the unavailability of these records. 4. Thereafter, the Veteran's complete electronic VA file must be transferred to an appropriate clinician other than the January 2021 VA examiner. After a review of the complete record, the clinician is asked to address the following: - Provide retrospective findings concerning the (1) increased right ankle symptoms during a flare-up at the time of the May 2017 VA examination and (2) describe the increased limitation of the right ankle (in degrees) during a flare-up at the time of the May 2017 VA examination. *The Board observes the inherent difficulties with providing such retrospective findings; however, such is necessary under precedential Court holdings. As such, the examiner is encouraged to discern these retrospective findings based on medical and lay evidence within the file which is contemporaneous to the May 2017 VA examination. If the clinician cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. *If the VA clinician believes that a contemporaneous physical examination of, and interview with, the Veteran is necessary to provide the requested retrospective findings, such should be scheduled, and the Veteran shall be provided notice of the time and place to report. 5. Thereafter, the AOJ must also undertake any development necessary to readjudicate the Veteran's appeal seeking a TDIU prior to March 15, 2014, to include verifying the Veteran's complete educational and occupational history and referring the case to the Director of Compensation Service for an extraschedular advisory opinion under 38 C.F.R. § 4.16 (b) for any period of consideration prior to March 15, 2014, where the Veteran's combined evaluation does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). 6. Thereafter, the AOJ must readjudicate the Veteran's appeal in light of the totality of the evidence of record. If any appealed issue is not granted to the fullest extent, the Veteran and his private attorney must be provided a copy of the readjudication, their rights and options to seek review of such under the AMA, and an appropriate time to respond. K. Conner Veterans Law Judge Board of Veterans' Appeals Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.