Citation Nr: 1144690	
Decision Date: 12/07/11    Archive Date: 12/14/11

DOCKET NO.  04-28 444A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for left foot hallux valgus, status post bunionectomy, external neurolysis, and tibial sesamoid planing.

2.  Entitlement to an initial compensable rating for right foot hallux valgus prior to June 10, 2009.

3.  Entitlement to a rating in excess of 10 percent for right foot hallux valgus from January 1, 2010

4.  Entitlement to an initial compensable rating for calluses of the left foot.

5.  Entitlement to an initial compensable rating for calluses of the right foot.

6.  Entitlement to a total rating based upon individual unemployability due to service-connected disability (TDIU).



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and Spouse


ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from October 1975 to October 1978 and from December 1978 to November 1990.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in June 2004 and June 2009 by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA).  The June 2004 rating decision established service connection for hallux valgus deformity, left foot, status post Austin bunionectomy, external neurolysis and tibial sesamoid planing, assigned a 10 percent rating effective from February 26, 2001, established service connection for hallux valgus deformity, right foot, with bunion of the right great toe, assigned a noncompensable rating effective from February 26, 2001, established service connection for calluses, left foot, assigned a noncompensable rating effective from December 23, 2003, and continued a noncompensable rating for calluses, right foot.  The June 2009 rating decision denied entitlement to a TDIU, but granted a temporary total rating based upon surgical treatment to the right foot necessitating convalescence under the provision of 38 C.F.R. § 4.30 effective June 10, 2009, and assigned a 10 percent rating for right foot hallux valgus effective October 1, 2009.  A February 2010 rating decision granted an extended temporary total rating under 38 C.F.R. § 4.30 through December 31, 2009, and assigned a 10 percent rating for right foot hallux valgus effective from January 1, 2010.  Special monthly compensation based upon housebound criteria was granted from June 10, 2009, to January 1, 2010.

In March 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing is of record.  The Board remanded the issues on appeal for additional development in July 2010.

VA records subsequently associated with the Veteran's claim file show that in a May 2010 rating decision the RO granted a temporary total rating based upon surgical treatment to the right foot necessitating convalescence under the provision of 38 C.F.R. § 4.30 effective from May 7, 2010, and assigned a 10 percent rating for right foot hallux valgus effective from August 1, 2010.  Entitlement to an extension of the convalescence period from January 1, 2010, to May 7, 2010, was denied.  Special monthly compensation based upon housebound criteria was granted from May 7, 2010, to August 1, 2010.  

A September 2010 rating decision granted an extension of special monthly compensation based upon housebound criteria through November 30, 2010, and granted an extension of the temporary total rating based upon surgical treatment to the right foot necessitating convalescence through November 30, 2010.  A 10 percent rating was assigned for hallux valgus deformity, right foot, status post first metatarsal osteotomy and arthroplasties, digits two through five, and bunionectomy effective from December 1, 2010.  

The Board notes the United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that a claim for a TDIU is generally a rating theory and "not a separate claim for benefits."  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  The Court declined, however, to decide whether in cases involving a claim for an increased disability rating an issue of a TDIU would be inextricably intertwined with any determination regarding the proper schedular rating of the underlying disability or disabilities.  The Board finds the present TDIU issue on appeal is more appropriately addressed as a separate claim.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to a rating in excess of 10 percent for left foot hallux valgus, status post bunionectomy, external neurolysis, and tibial sesamoid planing, entitlement to a compensable rating for right foot hallux valgus prior to June 10, 2009, entitlement to a rating in excess of 10 percent for right foot hallux valgus from January 1, 2010, entitlement to a compensable rating for calluses of the left foot, entitlement to a compensable rating for calluses of the right foot, entitlement to a TDIU prior to June 10, 2009, and entitlement to a TDIU subsequent to the reduction of a temporary TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition of the issue addressed in this decision has been obtained.  

2.  The Veteran is shown to have been unable to secure or follow a substantially gainful occupation as a result of his service-connected right foot hallux valgus disability from June 10, 2009.


CONCLUSION OF LAW

The criteria for a temporary total disability rating based on individual unemployability due to service-connected disabilities from June 10, 2009, exclusive of any assigned periods of a temporary total rating under the provisions of 38 C.F.R. § 4.30, have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been fulfilled by information provided to the Veteran as to the issue addressed in this decision.  Although a review of the record reveals that additional pertinent evidence exists requiring further VA development, the Board's current action is entirely favorable to the Veteran and to move forward with this matter will result in no prejudice.

TDIU
Laws and Regulations

VA law provides that a total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war.  It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable.  38 C.F.R. § 4.16(a) (2011).  

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration.  38 C.F.R. § 4.16(b).  A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed.  38 C.F.R. § 4.16(b).  Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating.  38 C.F.R. § 4.19 (2011).

The Court has held that in determining entitlement to a total disability rating based upon individual unemployability neither nonservice-connected disabilities nor advancing age may be considered.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  Id.  

VA's General Counsel has held that 38 C.F.R. § 4.16 authorizes VA to assign a total disability rating based upon a veteran's temporary (i.e., non-permanent) inability to follow a substantially gainful occupation.  VAOPGCPREC 5-2005; 72 Fed. Reg. 5,802 (2007). 

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. §§ 3.102, 4.3 (2011).

The Veteran appeared at a hearing before the undersigned in March 2010.  At that time, the Veteran reported that he had stopped working more than one year earlier and that he had worked in building maintenance as a manager for more than 20 years.  He reported that the job entailed a lot of standing and walking, and that he could not return to that job until he had no physical restrictions.  He also stated that he then worked as a courier which mostly involved driving, but that he was also unable to perform those duties as the duties involved walking as well.  The Board notes that the RO reported in a June 2009 rating decision that that it had received the Veteran's application for a TDIU in March 2009 and in that application, the Veteran reported that he last worked fulltime in October 2007.  The RO noted further, however, that employment information from IGA Transportation and U-Haul showed that the Veteran was working fulltime in 2008 and 2009.  The RO did note further, that in a VA medical center record dated March 2009, the Veteran reported that he had just started a new job.  This information is not necessarily inconsistent with the Veteran's testimony.

The record also indicates that in addition to the disabilities on appeal, service connection has been established for sleep apnea (rated 50 percent from May 2007); hiatal hernia with gastroesophageal reflux (rated 10 percent from July 1992 and 30 percent from March 2009); cervical spine arthritis (rated 20 percent from April 2010); right shoulder arthritis (rated 10 percent from April 2010); left shoulder impingement syndrome (rated 10 percent from April 2010); and scars of the right foot (rated 10 percent from April 2010).  The combined disability evaluation has been at least 70 percent from March 2009.

In this case, the record shows that on June 10, 2009, the Veteran underwent a right first metatarsal osteotomy and arthroplasties to digits two through five.  A temporary total rating based upon surgical treatment to the right foot necessitating convalescence under the provision of 38 C.F.R. § 4.30 has been assigned effective from June 10, 2009, to December 31, 2009, and from May 7, 2010, to November 30, 2010.  A combined 70 percent service-connected disability rating was effective from January 1, 2010, and a combined 80 percent rating was effective from April 6, 2010.  

VA treatment records include an April 1, 2010, note from the chief of podiatry which found that the Veteran should refrain from returning to his previous employment as a courier or should, in essence, explore the possibility of a temporary alternative occupation requiring sedentary functions.  The Veteran was scheduled to return in two weeks to discuss an additional surgical procedure.  A May 27, 2010, note signed by a medical resident reporting that the Veteran was receiving care and unable to work from January 1, 2010, and which would continue through August 16, 2010.  

An October 2010 VA examination report noted that the Veteran had multiple medical problems and that to state that his service-connected disabilities rendered him unable to secure or follow a substantially gainful employment could not be resolved without resorting to mere speculation.  It was further noted that, although he might be able to obtain gainful employment if he were in a sedentary setting, the multiple medical appointments to treat his service-connected problems would preclude him from maintaining any full-time employment due to frequent absences for medical reasons.  The examiner noted that treatment records indicated that his recovery from right foot surgery in 2010 might take up to two years from the summer 2010 surgery and therefore the Veteran would not be able to participate in gainful employment due to the service-connected foot condition.  

Although a May 2010 rating decision denied entitlement to an extension of the convalescence period from January 1, 2010, to May 7, 2010, the Board finds the evidence demonstrates  the Veteran to have been unable to secure or follow a substantially gainful occupation as a result of his service-connected right foot hallux valgus disability from June 10, 2009.  The medical evidence of record is persuasive.  Therefore, a temporary TDIU is warranted from June 10, 2009, exclusive of any assigned periods of a total rating under the provisions of 38 C.F.R. § 4.30.  To this extent, the appeal is granted.

The Board further notes that while the evidence suggests the Veteran's ability to secure or follow a substantially gainful occupation as a result of his service-connected right foot hallux valgus disability is expected to improve within two years of his May 2010 surgery, any reduction in rating must be taken with appropriate consideration of all applicable provisions of 38 C.F.R. §§ 3.105(e), 3.343 (2011).


ORDER

Entitlement to a temporary TDIU is granted from June 10, 2009, exclusive of any assigned periods of a total rating under the provisions of 38 C.F.R. § 4.30, subject to the laws and regulations governing the payment of monetary benefits.


REMAND

The Veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his remaining claims by correspondence dated in May 2007, July 2008, and August 2010.  

The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision.  38 C.F.R. § 3.159.  For records not in the custody of a Federal department or agency, reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request.  38 C.F.R. § 3.159(c)(1).  For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records.  38 C.F.R. § 3.159(c)(2).  

The Board notes that in support of his claims the Veteran submitted a copy of a January 2011 Social Security Administration (SSA) disability benefits award letter demonstrating an award of benefits beginning in December 2009.  The records associated with the Veteran's SSA claim are not of record and they should be obtained to assist the Veteran in substantiating his claim.  

The Court has held that SSA decisions are not controlling for VA purposes, but they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering such records.  See Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992).  Where SSA disability benefits have been granted, a remand to obtain SSA records is required.  See Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002) (stating that "the possibility that the SSA records could contain relevant evidence . . . cannot be foreclosed absent a review of those records.").

The Board notes that an October 2010 VA examiner found the Veteran had multiple medical problems, but that an opinion as to whether his service-connected disabilities rendered him unable to secure or follow a substantially gainful employment could not be resolved without resorting to mere speculation.  It was further noted that the multiple medical appointments to treat his service-connected problems would preclude him from maintaining any full-time employment due to frequent absences for medical reasons.  The examiner noted that treatment records indicated that his recovery from right foot surgery in 2010 might take up to two years from the summer 2010 surgery and therefore the Veteran would not be able to participate in gainful employment due to the service-connected foot condition.  

The Court has held that VA has a duty to assist veterans which includes conducting a thorough and contemporaneous medical examination.  See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Therefore, an additional examination should be conducted to determine the current nature and severity of the service-connected disabilities at issue.


Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  Expedited handling is requested.)

1.  Appropriate efforts should be made to ensure that the Veteran's VA Form 21-8940 received in March 2009 is of record, as well as VA Forms 21-4192, from IGA Transportation and U-Haul are of record.  

2.  Appropriate efforts should be taken to obtain a complete copy of the Veteran's Social Security Administration benefit claim, as well as, all associated medical records.

3.  Thereafter, the Veteran should be scheduled for an appropriate VA examination for an opinion as to the nature and severity of his service-connected left foot hallux valgus, right foot hallux valgus, calluses of the left foot, and calluses of the right foot.  The examiner should address the extent to which these disorders, independently or in association with other service-connected disabilities (sleep apnea; hiatal hernia with GERD; cervical spine arthritis; right shoulder arthritis; left shoulder impingement syndrome; and right foot scars), have resulted in an occupational impairment and should specifically indicate whether it is at least as likely as not that service-connected disabilities (alone or combined), either for an identifiable period of time or permanently prevent substantially gainful employment.  In making an assessment as to whether the Veteran is capable of obtaining or retaining gainful employment, the examiner should only take into account his service-connected disabilities, and not consider nonservice-connected disabilities or the Veteran's age.  All indicated tests and studies are to be performed.  

Prior to the examination, the claims folder must be made available for review of the case.  A notation to the effect that this record review took place should be included in the report.  

Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles.  All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

4.  After completion of the above and any additional development deemed necessary, the RO should review the issues remaining on appeal.  All applicable laws and regulations should be considered.  If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 

action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs