Citation Nr: 21031559 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-12 272A DATE: May 24, 2021 REMANDED Entitlement to an evaluation in excess of 30 percent for perirectal abscess 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 February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in September 2018 and his surviving spouse has been substituted as the Appellant in this case. The Appellant testified at a hearing before the undersigned in November 2020. This matter was previously remanded by the Board in February 2021. The case has been returned to the Board at this time for further appellate review. 1. Entitlement to an evaluation in excess of 30 percent for perirectal abscess is remanded. In the February 2021 Board remand, the Agency of Original Jurisdiction (AOJ) was directed to attempt to verify that the record is complete regarding any VA-generated evidence relevant to the claim for an increased evaluation for perirectal abscess. In this regard, the AOJ was also directed to document any such attempts to do so in the claims file. The February 2021 supplemental statement of the case reflects that the AOJ performed an electronic review of the Veteran's medical records from the Birmingham VA Medical Center (including the Gadsden VA Outpatient Clinic) for the period of January 1, 2015, through February 21, 2019. However, the Veteran had been treated at VA prior to January 2015 and the claim on appeal was filed in March 2012. Thus, it is unclear to the Board why the AOJ's review of the Veteran's VA medical records only went back to January 2015. As there is no other documentation that the AOJ attempted to verify that the record is complete regarding any VA-generated evidence relevant to the claim on appeal, the Board cannot be sure that there has been substantial compliance with its prior remand directive. Therefore, remand is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also finds that the January 2013 VA examination is inadequate because it is based on an inaccurate factual account. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual history is of limited probative value). Specifically, the January 2013 VA examiner noted that the Veteran did not have any scars related to his service-connected perirectal abscess. However, the medical record contains references to the Veteran's surgeries related to his perirectal abscess and the 2008 VA examination notes multiple surgical scars related to the Veteran's perirectal abscess. Because the January 2013 VA examination is the only evaluation of the Veteran's perirectal abscess during the period on appeal and it has limited probative value, the Board finds that remand is warranted for a retrospective opinion. 2. Entitlement to TDIU is remanded. The January 2013 VA examiner stated that the Veteran's perirectal abscess did not impact his ability to work, but also noted that the Veteran was on long term disability because of his perirectal abscess. The Court of Appeals for Veterans Claims has held that entitlement to a TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). As the record reflects some evidence of unemployability, the issue of entitlement to TDIU is part of the claim for an increased evaluation for perirectal abscess and is properly before the Board on appeal. The issue of entitlement to TDIU is inextricably intertwined with the increased rating claim for perirectal abscess, and thus is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Attempt to verify that the record is complete regarding any VA-generated evidence relevant to the claim for an increased evaluation for perirectal abscess from 2012 until 2018. Document any such attempts in the claims file 2. Obtain a retrospective opinion regarding the claim for an increased evaluation for perirectal abscess, preferably with an examiner who has not previously opined as to the Veteran's claim. After review of the claims file the clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's perirectal abscess under the rating criteria during the time period on appeal (from 2012 until 2018). This should include providing a full description of any scars, to include surgical scars, related to the perirectal abscess. In doing so, the clinician must address the Veteran's and Appellant's lay statements of record regarding the Veteran's symptomatology. The examiner is advised that the Veteran and Appellant are competent to report the Veteran's symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's and/or Appellant's reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.