Citation Nr: 22012277 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 13-26 120 DATE: March 3, 2022 REMANDED Entitlement to an increased rating for hiatal hernia is remanded. Entitlement to an increased rating for right foot calluses is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1986 to July 1988. The Veteran had additional periods of service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In May 2018, the Board denied entitlement to service connection for left ear hearing loss, and dismissed the claims of entitlement to a rating in excess of 10 percent for a hiatal hernia and entitlement to a rating in excess of 10 percent for right foot calluses. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In December 2018, the United States Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand and vacated the May 2018 decision of the Board of Veterans' Appeals (Board) to the extent that it denied entitlement to service connection for left ear hearing loss; and dismissed the claims of entitlement to a rating in excess of 10 percent for hiatal hernia and in excess of 10 percent for right foot calluses and remanded those issues to the Board for additional action. In January 2021, the Board remanded those claims to the Agency of Original Jurisdiction for additional action. In September 2020, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). During the course of this appeal, an April 2021 rating decision established service connection for left ear hearing loss and assigned a 0 percent rating, effective March 16, 2007. Therefore, the claim of entitlement to service connection for left ear hearing loss, previously the subject of the appeal, has been resolved in the Veteran's favor, and there is no longer a case in controversy for appellate consideration as to that claim. Therefore, that claim is no longer on appeal. 1. Entitlement to an increased rating for a hiatal hernia is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to an increased rating for a hiatal hernia. In January 2021, the Board remanded this matter to the Agency of Original Jurisdiction for further development. In the remand, the Board asked for an examiner to opine whether hiatal hernia symptoms were productive of severe impairment of health, considerable impairment of health, or a lesser level of impairment of health. At a March 2021 VA examination, the examiner did not directly address the question of whether hiatal hernia symptoms were productive of severe impairment of health, considerable impairment of health, or a lesser level of impairment of health. Therefore, the Board finds that there has not been substantial compliance with the January 2021 Board remand requests. The Board notes that remand confers on the Veteran the right to compliance with the terms of that remand. Stegall v. West, 11 Vet. App. 268 (1998). VA's statutory duty to assist the Veteran includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because the most recent VA examination was incomplete, the Board finds that there was not substantial compliance with the January 2021 Board remand requests. Thus, remand is again necessary. 2. Entitlement to an increased rating for right foot calluses is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to an increased rating for right foot calluses. In January 2021, the Board remanded this matter to the Agency of Original Jurisdiction for further development. In the remand, the Board asked the examiner to opine whether the right foot calluses resulted in moderate, moderately severe, or severe disability of the right foot. At a March 2021 VA examination, the examiner did not directly address the question of whether the calluses resulted in moderate, moderately severe, or severe disability of the right foot. Therefore, the Board finds that there has not been substantial compliance with the January 2021 Board remand. Thus, remand is again necessary. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to treatment for the claimed disabilities, including the names and addresses of all health care providers whose records have not already been provided to VA. On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e). 2. Obtain an addendum opinion from the examiner who performed the March 2021 VA esophageal conditions examination or, if that examiner is unavailable, schedule the Veteran with a VA examination by another qualified examiner with sufficient expertise to comment on the claimed disability. The examiner should be instructed to opine whether the Veteran's hiatal hernia has resulted in symptoms that are productive of severe impairment of health, considerable impairment of health, or a lesser level of impairment of health. The examiner must provide a complete rationale for the opinion. 3. Obtain an addendum opinion from the examiner who assessed the Veteran's right foot calluses during a March 2021 VA examination or, if that examiner is unavailable, schedule the Veteran for a VA examination with another qualified VA examiner with sufficient expertise to comment on the Veteran's claimed disabilities. The examiner should opine whether the Veteran's right foot calluses result in severe, moderately severe, moderate, or some lesser level of disability of the right foot. The examiner must provide a complete rationale the opinion. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.