Citation Nr: 1333314 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-14 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral pes planus and residuals of inguinal hernia repair. 2. Entitlement to a rating in excess of 30 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1975 to December 1984. These matters come before the Board of Veterans' Appeals (Board) from January 2007 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In the January 2007 decision, the RO denied entitlement to service connection for low back pain. In the April 2008 decision, the RO denied entitlement to a rating in excess of 10 percent for bilateral pes planus. In July 2012, the Board granted an increased (30 percent) rating for bilateral pes planus and remanded the claim of service connection for a low back disability for further development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2013, the Court remanded the case for readjudication in compliance with directives specified in a March 2013 Joint Motion filed by counsel for the Veteran and VA. The Joint Motion specified that the parties only sought remand with respect to that portion of the Board's decision that denied entitlement to a rating in excess of 30 percent for bilateral pes planus. In March 2013, the Board also remanded the issue of entitlement to service connection for a low back disability for further development. This appeal was processed using the Veteran's Benefits Management System (VBMS) and the Virtual VA claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. REMAND A veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of his disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence (including a veteran's statements) of a possible increase in disability since the last examination. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). In this case, the evidence reflects that the Veteran's service-connected bilateral pes planus may have worsened since his VA examination in August 2008. When the Veteran's representative filed a brief on appeal in May 2012, the representative argued for a 30 percent rating, which the Board granted in July 2012, but also indicated that the Veteran's disability had worsened since the last VA examination. Given such a claim, another examination is required. (This was the basis for the 2013 joint motion for remand by the parties.) Additionally, the Court has held that entitlement to a total disability rating based on individual unemployability (TDIU) may be an element of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU rating is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The evidence reflects that the Veteran has been unemployed throughout much of the claim period and he has reported that he is unable to work, in part, because of his service-connected bilateral pes planus. He submitted a formal claim for a TDIU (VA Form 21-8940) in October 2009. Thus, given the evidence of a medical disability, the claim for the highest rating possible, and evidence of unemployability, the record raises a claim for a TDIU under Roberson and Rice. The Court has held that in the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect a veteran's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The evidence of record does not contain a specific opinion as to whether the Veteran's service-connected disability prevents him from securing and following employment for which his education and occupational experience would otherwise qualify him. As the record stands, the percentage requirements for assignment of a TDIU under 38 C.F.R. § 4.16(a) (2013) are not met. It should be pointed out that VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The provisions of 38 C.F.R. § 4.16(b) allow for extra-schedular consideration of an award of TDIU by VA's Director of Compensation and Pension Service (C&P). Therefore, on remand, consideration shall be given to referral of the question of entitlement to TDIU under 38 C.F.R. § 4.16(b). The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159(c), (d) (2013). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). The Veteran submitted private treatment records dated in August 2011 pertaining to treatment received for his back disability and bilateral foot disability at Physical Therapy Services of West Louisiana, Inc. and the Orthopedic Center of Louisiana. These records indicate that he was scheduled for additional treatment at these facilities, the records of which are not included among the evidence of record. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and ask for a release to obtain the records. If the Veteran does not provide the release, VA should ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not been taken with regard to any additional relevant treatment records from the above-identified treatment providers. Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. In addition, following supplemental statements of the case dated in February 2011, additional relevant evidence was associated with the claims file, including the treatment records from Physical Therapy Services of West Louisiana, Inc. and the Orthopedic Center of Louisiana, an August 2011 opinion as to the etiology of the Veteran's current low back disability from a physician at the Orthopedic Center of Louisiana, and a May 2013 opinion from a VA nurse practitioner pertaining to the etiology of the Veteran's low back disability. This evidence was not referenced in the most recent supplemental statement of the case pertaining to the issue of entitlement to service connection for a low back disability, which was issued in September 2012. As pertinent evidence was received subsequent to the February 2011 supplemental statements of the case and as this evidence was not considered by the agency of original jurisdiction (AOJ), the Board is required to remand the service connection and increased rating questions for issuance of the necessary supplemental statement of the case. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete authorizations for VA to obtain all records of his treatment for a foot disability and/or a back disability from Physical Therapy Services of West Louisiana, Inc., the Orthopedic Center of Louisiana, and any other private treatment provider from whom relevant records have not already been obtained. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be asked to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims. All such notification must be documented in the claims file. 2. After all efforts have been exhausted to obtain and associate with the record any additional treatment records, schedule the Veteran for a VA examination to evaluate the current severity of his service-connected bilateral pes planus. All indicated tests and studies shall be conducted. All relevant evidence of record, including this remand, any relevant records contained in VBMS and the Virtual VA system, and any records obtained pursuant to this remand, must be sent to the examiner for review. All symptoms relative to the Veteran's bilateral foot disability shall be set forth in detail. The examiner shall also specifically discuss the following: (a) Whether the Veteran's symptoms are mild, and his symptomatology is relieved by built-up shoe or arch support; (b) Whether his symptoms are moderate, with weightbearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet; (c) Whether his symptoms are severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities; or, (d) Whether his symptoms are pronounced, with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances; and (e) Whether the Veteran's service-connected bilateral pes planus prevents him from securing and following substantially gainful employment for which his education and occupational experience would otherwise qualify him. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions regarding the severity of his disability. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The AOJ shall review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 4. If, after completion of instructions 1 through 3 above, the evidence reflects that the Veteran is unemployable due to service-connected disability and there is any period since February 2008 that he was unemployed and did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), the AOJ shall refer the case to VA's Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) during those periods. 5. If a benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case that considers all additional relevant evidence (including the treatment records from Physical Therapy Services of West Louisiana, Inc. and the Orthopedic Center of Louisiana, the August 2011 opinion from a physician at the Orthopedic Center of Louisiana, the May 2013 opinion from a VA nurse practitioner, and all other additional relevant evidence received since the February 2011 supplemental statement of the case pertaining to the issue of entitlement to an increased rating for bilateral pes planus and the September 2012 supplemental statement of the case pertaining to the issue of entitlement to service connection for a low back disability). After the Veteran is given opportunity to respond, the case shall be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).