Citation Nr: 25005778 Decision Date: 04/28/25 Archive Date: 04/28/25 DOCKET NO. 18-25 739 DATE: April 28, 2025 REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected left achilles tendonitis is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected right achilles tendonitis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from March 1978 until her honorable discharge in March 1981. This matter before the Board of Veterans' Appeals (Board) is on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in December 2023. See December 2023 Board decision. At that time, the Board granted entitlement to a separate rating for left ankle instability, denied increased ratings for bilateral ankle tendonitis, and remanded the issue of entitlement to TDIU. Id. The Veteran subsequently appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Partial Remand (JMPR) which the Court granted in October 2024, vacating the Board's decision and remanding the bilateral ankle increased ratings claims due to the Board's failure to provide an adequate statement of reasons and bases for its decision. See October 2024 JMPR; see also October 2024 Court Order. The Court did not address the issue of entitlement to TDIU, as the Board's remand of this issue was not a final decision. See Breeden v. Principi, 17 Vet. App. 475, 478 (2004) ("The Board's remand does not represent a final decision over which this Court has jurisdiction."). Thereafter, the claim came before the Board again in March 2025. The Board remanded the claim for the issues of entitlement to increased disability ratings for service-connected bilateral achilles tendonitis and entitlement to TDIU for development consistent with the JMPR. See March 2025 Board decision. These matters are now back before the Board for adjudication. 1. Entitlement to a disability rating in excess of 20 percent for service-connected left achilles tendonitis is remanded. 2. Entitlement to a disability rating in excess of 20 percent for service-connected right achilles tendonitis is remanded. Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration. In the parties' JMPR, they agreed that the Board erred by failing to address material evidence supporting the Veteran's claim. See October 2024 JMPR. Specifically, the Board did not consider a notation from a November 2017 VA treatment note wherein the nurse noted "stiff ankle [dorsiflexion]." Id. On remand, they agreed that the Board must address this evidence and discuss whether it supports finding that the Veteran experiences the functional equivalent of ankylosis consistent with the holding of Chavis v. McDonough. 34 Vet. App. 1, 10 (2021) (holding that, when applying rating criteria that include ankylosis, 38 C.F.R. §§ 4.40 and 4.45 require the Board to consider whether the Veteran experiences the "functional equivalence" of ankylosis). In its March 2025 decision, the Board acknowledged the November 2017 VA treatment note as well as evidence contained within a July 2023 VA examination report indicating that, during flare-ups, the Veteran's plantar flexion is limited to two degrees and her dorsiflexion is limited to one degree. See March 2025 Board decision; see also July 2023 VA examination. On remand, the Board sought a medical opinion or, if deemed necessary, an examination report. The examiner was asked to (1) obtain the Veteran's detailed lay history, including onset and progression of symptomatology, if an examination is conducted; (2) discuss the diagnostic criteria of ankylosis to include an analysis of whether a diagnosis of ankylosis requires complete fixation or immobilization of a joint, as well as whether a diagnosis of ankylosis requires permanent fixation or immobilization of a joint; and (3) opine as to whether the Veteran's symptomatology constitutes the functional equivalent of ankylosis, specifically considering the November 2017 VA treatment note, the July 2023 VA examination findings, and the Veteran's lay statements. See March 2025 Board decision. The Board observes that the Veteran presented to a VA examination in April 2025. See April 2025 VA examination. However, while the examiner obtained a lay history from the Veteran and recorded that she did not have ankylosis of either ankle, she failed to address the specific directives regarding the diagnostic criteria of ankylosis and did not consider whether the Veteran's symptomatology constituted the functional equivalent of ankylosis. Id. There is also no reference to the evidence specifically identified by the Board for additional consideration. When the Veteran has been provided a VA examination, VA has a duty to provide an adequate examination, which includes an adequate opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board regrets the delay associated with this remand; however, for the above reasons, the Board finds that another remand is necessary to comply with the terms of the Board's March 2025 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board or the Court "confers on the veteran... as a matter of law, the right to compliance with the remand orders[,]" and the Board itself errs when it does not ensure compliance with the terms of such a remand). 3. Entitlement to TDIU is remanded. As identified in the Board's March 2025 decision, the Veteran has reported that she has been unable to work due to her service-connected disabilities since August 2015. See November 2015 VA Form 21-8940. The Court in Harris v. Derwinski, has held that where a decision on one issue would have a "significant impact" on another, and where that impact in turn could render any review by this Court of the decision on the other claim "meaningless and a waste of judicial resources," the two claims are inextricably intertwined. 1 Vet. App. 180 (1991). The Board continues to find that this issue is intertwined with the matters on remand and as a result must also be remanded. See Harris, 1 Vet. App. at 181; see also Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the nurse practitioner who performed the April 2025 VA examination or, if she is unavailable, a similarly qualified medical professional. The entire claims file must be provided to, and reviewed by, the physician. If the physician determines it to be necessary, another examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: a) If another examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. b) Discuss the diagnostic criteria of ankylosis. Discussion should include an analysis as to whether a diagnosis of ankylosis requires complete fixation or immobilization of a joint. The discussion should also indicate whether a diagnosis of ankylosis requires permanent fixation or immobilization of a joint. c) Opine as to whether the Veteran's symptomatology constitutes the functional equivalent of ankylosis. The examiner should specifically consider and address the following: i. November 2017 VA physical therapy records documenting "stiff ankle [dorsiflexion]." ii. The July 2023 Ankle Conditions DBQ indicating that the Veteran experiences plantar flexion limited to two degrees and dorsiflexion limited to one degree during flare-ups. i. The Veteran's lay statements, to include her assertion that she is unable to move her ankles during flare-ups. See October 2024 Lay Statement. Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 2. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. a) If any development action is incomplete, the appropriate corrective action must be implemented. b) If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V.B. 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.