Citation Nr: 21042218 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-19 752 DATE: July 12, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent to March 10, 2020 for left ankle degenerative arthritis with residuals, status post joint fusion and ankylosis is remanded. Entitlement to a post-convalescent rating in excess of 30 percent from July 1, 2020 for left ankle degenerative arthritis with residuals, status post joint fusion and ankylosis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1989 to June 1989 and from May 16, 1992 to May 30, 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2018 decision, the Board denied entitlement to an initial disability rating in excess of 20 percent for left ankle degenerative arthritis. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). A January 2020 Joint Motion for Remand (JMR), vacated the November 2018 Board decision and remanded the issue to the Board for readjudication. A September 2020 Board decision remanded the issue of entitlement to an initial rating in excess of 20 percent for left ankle degenerative arthritis to obtain a VA left ankle examination and a retrospective medical opinion pertaining to prior VA examinations. During the pendency of the appeal, the Veteran's left ankle disability was increased to 30 percent disabling effective July 1, 2020, the date following the period of convalescence assigned for a left ankle surgery that resulted in a left ankle joint fusion with ankylosis. The Veteran was also awarded a noncompensable evaluation for a left ankle scar, a residual of his left ankle fusion surgery. See April 2021 rating decision. Currently, the Veteran is assigned a 20 percent initial rating for his left ankle disability from the date of award of service connection in July 2009 up until the date of the Veteran's left ankle surgery, at which point the Veteran's disability was assigned a surgery-based total convalescent rating. After expiration of the convalescence period, the Veteran was assigned a 30 percent rating from July 1, 2020. 1. Entitlement to an initial rating in excess of 20 percent from July 29, 2009 to March 10, 2020 for left ankle degenerative arthritis with residuals, status post joint fusion and ankylosis is remanded. 2. Entitlement to an increased post-convalescent rating in excess of 30 percent from July 1, 2020 for left ankle degenerative arthritis with residuals, status post joint fusion and ankylosis is remanded. This matter was previously remanded for additional development in a September 2020 Board decision. Regrettably, the Board finds that there has not been substantial compliance with those remand directives, and therefore, the claim for an increased rating of a left ankle disability must be remanded once again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). In this case, a September 2020 Board remand directive asked the VA examiner to provide a retrospective opinion regarding November 2009 and May 2016 VA examinations. Specifically, the VA examiner was asked to estimate additional range of motion loss of the left ankle in degrees, on repeated use over time or during flare-ups. The examiner was also asked to retrospectively estimate additional loss of range of motion in degrees, including for pain, on both active and passive motion, and in weight bearing and non-weight bearing at the time of the November 2009 and May 2016 VA examinations. The Board remand directive stated that if it was not feasible to provide a retrospective opinion without resorting to speculation, or if the examiner concludes that a retrospective opinion is not necessary, the examiner must provide an explanation why this is so. In response to this directive, an April 2021 VA examiner stated that she was unable to provide such an opinion without resorting to speculation because she was not the examining provider for the November 2009 and May 2016 VA examinations. See April 2021 VA opinion. Unfortunately, this explanation as to why she could not render an opinion without resorting to speculation is inadequate and does not substantially comply with the Board's September 2020 remand directives. The Board is simply asking for a medical opinion regarding past impairment, not recall by the actual examiner. Accordingly, the claim is remanded for compliance with the September 2020 Board remand directives. See Stegall v. West, 11 Vet. App. at 271. 3. Entitlement to a TDIU In a February 2021 Podiatry note, the Veteran reported daily left ankle pain and stated that he is no longer able to work because his ankles, knees and back hurt too much. See outpatient treatment note from the Wilmington VA clinic. This raises the issue of whether the Veteran is entitled to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In accordance with Rice, entitlement to a TDIU is considered part and parcel to the increased rating claim already on appeal. Thus, the Board has jurisdiction to consider this issue. The issue of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to a higher rating for a left ankle disability remanded herein, and the development of that claim may affect the determination of the TDIU claim. Accordingly, they must be considered together, and thus, a decision by the Board on the issue of entitlement to a TDIU would be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Additionally, the Board notes that the claims file does not contain a formal application for entitlement to TDIU. On remand, a VA Form 21-8940 should be obtained from the Veteran to determine whether or not the Veteran is working. Upon receipt of the same, the agency of original jurisdiction (AOJ) should conduct any other development it deems necessary. These matters are REMANDED for the following actions: 1. Obtain updated VA treatment records. 2. Obtain a VA Form 21-8940 indicating educational and employment information from the Veteran, including the last time he was employed, the number of hours worked and his wages. Inform the Veteran that if employment information is not received, his claim for entitlement to a TDIU may be considered abandoned. Upon receipt of VA Form 21-8940, conduct any additional appropriate development. 3. An opinion should be obtained from an appropriate clinician to retrospectively evaluate the November 2009 and May 2016 VA examinations and provide the following responses: (a) The examiner should provide a retrospective opinion estimating the additional functional impairment of the left ankle, in terms of the expected degree of additional range of motion loss on repeated use over time or during flare-ups, based on the evidence of record and the Veteran's statements. If it is not possible to provide a measurement by estimation without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. (Continued on the next page) (b) The examiner should provide a retrospective opinion estimating the left ankle range of motion in degrees, including for pain, on both active and passive motion and in weight-bearing and nonweight-bearing, for both the November 2009 and May 2016 VA examinations. If it is not possible to provide a retrospective opinion without resorting to speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alison M. Mecone, 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.