Citation Nr: 1319585 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 13-02 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a spine disorder, to include as secondary to service-connected bilateral foot disability. 2. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected bilateral foot disability. 3. Entitlement to an increased evaluation for bilateral foot disability, currently evaluated as 40 percent disabling. 4. Entitlement to a total disability rating based upon individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1946 to May 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 and December 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The evidence suggests that the Veteran has an inability to retain employment due to his service-connected disabilities including his service-connected bilateral foot disability. Entitlement to a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. As such, the issue is now properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The issues of entitlement to service connection for a spine disorder, to include as secondary to service-connected bilateral foot disability, entitlement to service connection for a right hip disorder, to include as secondary to service-connected bilateral foot disability, and entitlement to a TDIU are remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The Veteran's bilateral foot disability is manifested by extreme tenderness of the plantar surface of both feet and mid foot pronation, with symptoms not improved by orthopedic shoes or appliances, but not by marked pronation or marked inward displacement and severe spasm of the tendo achilles on manipulation. CONCLUSION OF LAW The criteria for an evaluation in excess of 40 percent for the Veteran's bilateral foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.322(a), 4.22, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's August 2009 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim at issue herein. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Additionally, the August 2009 letter to the Veteran notified him that he must submit, or request that VA obtain, evidence of the worsening of his disabilities and the different types of evidence available to substantiate his claim for a higher rating. Moreover, this letter informed him of the requirements to obtain higher ratings and notified him of the need to submit evidence of how such worsening effected his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded a VA examination that is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the September 2009 and July 2012 examiner took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disability. Id. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a) (2012). As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Disability evaluations are determined by the application of VA's Schedule of Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The Veteran's service-connected bilateral foot disability is rated under the provisions of the musculoskeletal system for acquired flatfoot. 38 C.F.R. § 4.71a, Diagnostic Code 5276. A 10 percent evaluation is warranted for moderate, bilateral pes planus with the weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. Id. A 30 percent evaluation is assigned for severe bilateral pes planus manifested by objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use of the feet, indications of swelling on use of the feet, and characteristic callosities. Id. A maximum 50 percent evaluation may be assigned for pronounced bilateral pes planus manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the Achillis tendon on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. In a June 2009 letter, a VA physician indicated that the Veteran is his patient and the physician had reviewed his records. The physician stated that the Veteran's foot condition was worsening to the point that he has difficulty ambulating. In the physician's opinion, this worsening merits an increase in the Veteran's evaluation for the disability. VA treatment records dated during the course of this appeal showing that the Veteran was found to have difficulty with ambulation. In June 2009, the Veteran reported that he was having difficulty with his gait which had exacerbated his underlying left flat foot. At the time, he had a cane at home, but was refusing a walker. In an August 2009 letter, the Veteran's private podiatrist stated that the Veteran was under the podiatrist's care for severe flat feet. The podiatrist said that this had worsened immensely through the years. The Veteran was not stable on his feet and needed a walker to help with weight bearing. In September 2009, the Veteran was provided with a VA feet examination. While the claims file was not available to the examiner, the examiner reviewed the Veteran's VA treatment records, a letter from the Veteran's private podiatrist provided by the Veteran, and an accurate report of the medical history related to the Veteran's bilateral foot disability was obtained. Further, the examiner provided physical findings related to the bilateral foot disability. The examiner noted that the Veteran had sustained a fall that year and was seen in the emergency room. VA treatment records stated that the Veteran's gait problem is "secondary to underlying left flat foot." The Veteran had also been seen by VA physical medicine and rehabilitation, and was issued a rolling walker that same day. Prior to that, he was using a cane and was having a problem with falling. The Veteran reported pain at the bottom of both feet at a level of 5-6/10, which he described as throbbing and achy, and present every day when walking. He felt that his feet had been getting worse and that it was harder to walk. He planned to start physical therapy because of it. He did not have weakness in the feet, but he did in his legs. He had swelling around the ankles, but no heat or redness at that time, although he might when he has gout. He endorsed severe fatigability, lack of endurance, and a problem with falling. The Veteran's symptoms were better with rest, and much worse with standing and walking. He did not take any pain medications with respect to the feet. His symptoms were steady and did not flare-up. The Veteran had been issued orthotics from VA and he said that they were helpful. Nevertheless, he still had pain and difficulty ambulating. He presented to the examination wearing his orthotics in his shoes. The Veteran denied any hospitalization or surgery related to the feet. The Veteran lived alone and handled his own activities of daily living, although he had difficulty with shoes and socks. The examiner assisted with putting on the Veteran's socks during the examination. It was noted that the Veteran was retired. He previously worked as a laborer for the Federal government when he first separated from service, then he worked for the New York Police Department and retired from such service in 1973. He also did temporary work for the Federal Marshals. The Veteran reported that he could not stand more than five minutes at a time and he did not walk more than one and one-half blocks at a time. He mentioned that he had experienced a recent fall. Upon physical examination of the feet, there was tenderness to palpation under the arches. There was no painful motion, instability, or weakness. There was 1+ edema at the ankles. The examiner observed that the Veteran ambulated with a very slow shuffling and antalgic gait. There were no callosities, breakdown, or unusual shoe wear patterns of the right foot, and the left foot had no callosities or unusual shoe wear patterns. There was a slight scratch on the dorsal aspect of the third toe of the left foot, without any drainage or erythema. There were no skin or vascular changes. The examiner found no hammer toes, high aches, claw foot, or other deformities. The examiner noted bilateral fixed pes planus that gets worse with weight bearing. The Veteran's achilles tendon appeared midline, and was not correctable by manipulation. The Veteran also had mid foot pronation, which was fixed and not correctable by manipulation. Hallux valgus was not an issue. The Veteran had active motion in the bilateral metatarsophalangeal joint. The diagnosis was of bilateral fixed pes planus. VA treatment records indicate that in September 2009, the Veteran was noted to have lower extremity weakness, imbalance, and gait disorder secondary to peripheral neuropathy, in addition to visual impairment. He had fallen several times. At that time, he was referred for issuance of a rolling-seated walker and into to a physical therapy program. He underwent physical therapy in September and October 2009. In December 2010, the Veteran reported that he was "slowing down," but denied any issues with gait stability, pain, or falling. He had a cane but had not been using it. He reported that he was able to walk around and walked to a local college. Subsequent treatment records show that the Veteran reported increasing stiffness and problems with stability in the lower extremities, as well as increasingly greater difficulties with ambulating. In May 2012, the Veteran reported that his pes planus caused discomfort while walking and was worsening his pain in his knees and ankles. He was referred for a rolling walker with a seat, along with physical therapy. He was issued a rolling walker with a seat that same month, and began physical therapy the following month. He was discharged from the physical therapy program in August 2012 upon completion of his prescribed sessions. The Veteran was provided with another VA pes planus examination in July 2012, with the VA examiner that conducted the September 2009 examination. Once again, the claims file was not available for review, but the examiner reviewed the Veteran's VA treatment records and an accurate report of the medical history related to the Veteran's bilateral foot disability was obtained. The Veteran reported that he wore orthotics, on and off. He had daily throbbing of his feet. The pain was on the bottom and was at a level of 6/10. He reported problems over the last few years with frequent falls. The Veteran indicated that his last fall was about one year prior to the examination. He was in physical therapy at that time with VA. He was getting gait training with his rolling walker and a seat. He was limited with ambulation to about one block at a time and could not stand for more than five minutes at a time. He needed to use his "rollator" and sat frequently. Upon physical examination, the Veteran had pain on use of the feet, which was accentuated on use. He did not have pain on manipulation of the feet. There was indication of swelling on use, bilaterally. The Veteran did not have characteristic calluses, or any calluses caused by pes planus. His symptoms were not relieved by arch supports or built up shoes or orthotics, and both sides remained symptomatic despite arch supports or orthotics. There was extreme tenderness of the plantar surface of both feet, which was not improved by orthopedic shoes or appliances. The Veteran also had decreased longitudinal arch height on weight-bearing, bilaterally. There was no objective evidence of marked deformity of the foot such as, pronation, abduction, etc. The weight-bearing line did not fall over or medial to the great toe. There was no lower extremity deformity other than pes planus, that caused alteration of the weight bearing line. "Inward" bowing of the achilles tendon, i.e., hind foot valgus, with lateral deviation of the heel, was not shown, nor was marked inward displacement and severe spasm of the achilles tendon, rigid hindfoot, on manipulation. The examiner noted that the Veteran ambulated with a slow antalgic gait, somewhat shuffling, and forward bent posture with his rollator. The examiner reported that the Veteran used assistive devices as a normal mode of locomotion, including the use of a walker constantly, and shoe orthotics regularly. The examiner found that there was not functional impairment of the lower extremities such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. With regards to functional impact, the examiner determined that the Veteran's flatfoot condition impacted his ability to work. The examiner explained that based on his ambulation deficits, the limitations of one block with the rollator, and no standing more than five minutes at a time, the disability would affect the Veteran's ability to work. In written statements, the Veteran indicated that his service-connected bilateral foot disability was worsening. He stated that the condition caused weakness and affected his legs. He noted that it was difficult and painful for him to walk even a short distance. When ambulating, he used assistive devices, including a cane and a walker, and required frequent rest breaks. He had undergone physical therapy through VA, and performed daily exercises at home. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence of record shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Based on this evidence, the Board finds that a rating in excess of 40 percent for the Veteran's bilateral foot disability, diagnosed as bilateral pes planus, is not warranted under Diagnostic Code 5276. In this regard, the Board notes that the Veteran is currently in receipt of the highest evaluation assignable for bilateral pes planus. Here, service connection for a bilateral foot disability was granted under a theory of in-service aggravation of a pre-existing condition. In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, whether the particular condition was noted at the time of entrance into the active service or is determined upon the evidence of record to have existed at that time. 38 C.F.R. §§ 3.322(a), 4.22. It is necessary therefore, in all such cases to deduct from the present degree of disability the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the Rating Schedule, except that if the disability is total, 100 percent, no deduction will be made. Additionally, if the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made. Historically, service connection for a bilateral foot disability was granted in a February 2007 rating decision, and a 40 percent rating was assigned, effective August 5, 2005. Although the Veteran's bilateral foot disability was evaluated as 50 percent disabling, a rating of 40 percent was assigned, offsetting for the pre-service level of disability, which was determined as 10 percent. The rating decision explained that since the Veteran's bilateral foot disability, diagnosed as pes planus, preexisted service, but was aggravated therein, it was therefore necessary to deduct the disability existing at the time of the Veteran's entrance into active service, which was 10 percent, from the assigned evaluation of 50 percent. The Veteran did not initiate a timely appeal to that rating action, and that decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). In July 2009, the Veteran submitted a claim for an increased evaluation for the service-connected bilateral foot disability. Manifestations of the Veteran's bilateral service-connected foot disorder currently meet the criteria for 50 percent, the maximum evaluation under Diagnostic Code 5276. See 38 C.F.R. § 4.71a. In this case therefore, the disability rating of 40 percent for his service-connected bilateral foot disability is the maximum evaluation that can be assigned, in light of the evaluation of his bilateral foot disability at 10 percent when he entered active service. See 38 C.F.R. § 4.71a, Diagnostic Code 5276; see also 38 C.F.R. § 3.322(a). The Board has considered other avenues that may afford the Veteran a schedular disability rating in excess of this remaining 40 percent, but finds that the law precludes any such schedular increase. In this regard, the Board need not consider the diagnostic codes for weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, or hammer toe, as none of these diagnostic codes provide a rating in excess of 50 percent. 38 C.F.R. § 4.71a , Diagnostic Codes 5277, 5278, 5279, 5280, 5281, 5282 (2012). Moreover, an increased rating is not warranted for malunion or nonunion of the tarsal or metatarsal bones, as neither disorder has been shown on examination or attributed to the Veteran's service-connected bilateral foot disability, diagnosed as pes planus. 38 C.F.R. § 4.71a, Diagnostic Code 5283 (2012). Finally, the Board has considered whether an increased rating would be appropriate for "other foot injuries." 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). The Board finds, however, that Diagnostic Code 5284 is not the most appropriate code to use because it is a very general, catch-all provision which is intended to cover a variety of foot disabilities. On the other hand, Diagnostic Code 5276 expressly contemplates the exact anatomical location, symptomatology, and functions that are affected by the diagnosed pes planus. Therefore, the Board finds that the Veteran's service-connected bilateral foot disability is most accurately assigned an evaluation under the specific provisions of Diagnostic Code 5276, acquired flatfoot, as "the canon of interpretation that the more specific trumps the general." See Zimick v. West, 11 Vet. App. 45, 51 (1998) ("a more specific statute will be given precedence over a more general one....") (quoting Busic v. United States, 446 U.S. 398, 406 (1980)); see also Kowalski v. Nicholson, 19 Vet. App. 171, 176-77 (2005). In this case, the Veteran's statements are competent evidence to describe the pain caused by his service-connected bilateral foot disability as this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469, 470 (1994). However the Veteran's statements are not competent evidence to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such evidence concerning the nature and extent of the Veteran's bilateral foot disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered medical findings that directly address the criteria under which this disability is evaluated. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected bilateral foot disability is evaluated as acquired flatfoot pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. The Veteran's bilateral pes planus is manifested by extreme tenderness of the plantar surface of both feet, mid foot pronation, pain on use of the feet, which was accentuated, and indication of swelling on use, with symptoms not improved by orthopedic shoes or appliances, but not by marked pronation or marked inward displacement and severe spasm of the tendo achillis on manipulation. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 50 percent disability rating. The criteria for a 50 percent rating reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Code 5276; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). After review of the evidence of record, there is no evidence of record that would warrant a rating lesser than or in excess of 40 percent for the Veteran's service-connected bilateral foot disability at any time during the period pertinent to this appeal. 38 U.S.C.A. 5110 (West 2002); see also Hart, 21 Vet. App. at 509. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected bilateral foot disability, the evidence shows no distinct periods of time during the appeal period, when the Veteran's service-connected bilateral foot disability has varied to such an extent that a rating greater or less than 40 percent would be warranted. Cf. 38 C.F.R. § 3.344 (2012) (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). In reaching these decisions, the Board has considered the doctrine of reasonable doubt. However, as discussed above, the preponderance of the evidence is against the Veteran's claim of entitlement to a rating in excess of 40 percent for bilateral foot disability. Accordingly, the doctrine is not for application and a rating in excess thereof is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER A rating in excess of 40 percent for bilateral foot disability is denied. REMAND With regard to the Veteran's claims of entitlement to service connection for a spine disorder and a right hip disorder, the Veteran initially asserted that such disorders are secondary to the service-connected bilateral foot disability. However, in recent correspondence, the Veteran also contends that such disorders are due to service, including exposure to cold temperatures therein while training in the Rocky Mountains in Colorado during September through November of 1946. In written statements, the Veteran has indicated that he received treatment for his claimed spine and right hip disorders from several private physicians dating since the 1960s. He claims that arthritis of the spine and right hip was confirmed in the 1960s. However, the records of such treatment have not been associated with the evidence of record. Thus, the RO must obtain and associate with the evidence of record all outstanding private treatment records identified by the Veteran which are pertinent to the issues on appeal. Additionally, the claims file includes VA outpatient treatment records from the Brooklyn VA Medical Center (VAMC) dated through December 2012. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the evidence of record. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must also obtain and associate with the Veteran's file all outstanding records of VA evaluation and/or treatment since December 2012. Additionally, the Veteran underwent VA examinations in October 2012 to evaluate his spine and right hip disorder. The examiner diagnosed multilevel lumbar spondylosis, bilateral sacroiliitis, and mild degenerative arthritis of the hips. The examiner provided an opinion on the question of whether such disorders are related to the Veteran's service-connected bilateral foot disability. However, the Board notes that the examiner did not provide an opinion on the question of direct service connection. Therefore, on remand, after completing the above requested development, the RO must also undertake any other development it determines to be warranted, to include obtaining further VA examination and opinion, if required. Finally, during the July 2012 VA flatfoot examination, the examiner determined that the Veteran's flatfoot impacted his ability to work. The examiner explained that based on the Veteran's ambulation deficits, the limitations of one block with the rollator, and no standing more than five minutes at a time, the disability would affect the Veteran's ability to work. Accordingly, the Veteran should be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. In addition, statutory and regulatory notice should be provided concerning the information and evidence necessary to substantiate a claim for TDIU. Moreover, an appropriate VA examination to determine the effects of the Veteran's service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience has not been conducted. Such can be accomplished on remand. In light of the Board's decision to remand the issues of entitlement to service connection for a spine disorder, to include as secondary to service-connected bilateral foot disability, and entitlement to service connection for a right hip disorder, to include as secondary to service-connected bilateral foot disability, the issue of entitlement to a TDIU is inextricably intertwined with the service connection claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the case is remanded for the following action: 1. The RO must send the Veteran proper statutory and regulatory notice that advises the Veteran about what is needed to substantiate a claim for TDIU. In addition, the Veteran must complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. 2. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include the records of all private treatment since service for his claimed spine and right hip disorders. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain all relevant VA treatment records from the VAMC in Brooklyn, New York, since December 2012. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. The RO must also undertake any other development it determines to be warranted, to include obtaining appropriate VA examinations and opinions, if required. 4. The Veteran must be afforded an appropriate VA examination to determine to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 5. The RO must notify the Veteran that it is his responsibility to report for the scheduled examinations 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. §§ 3.158 , 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If a report is deficient in any manner, the RO must implement corrective procedures at once. 7. After completing all appropriate development, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs