Citation Nr: 1333699 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 05-22 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for right knee osteoarthritis, to include as secondary to service-connected residuals of fractures of the right second and third toes and left knee patellofemoral degenerative joint disease. 2. Entitlement to service connection for right great toe osteoarthritis, to include as secondary to service-connected residuals of fractures of the right second and third toes and left knee patellofemoral degenerative joint disease. 3. Entitlement to service connection for a back disability, including right sacroiliac joint degenerative changes, to include as secondary to service-connected residuals of fractures of the right second and third toes and left knee patellofemoral degenerative joint disease. 4. Entitlement to service connection for right elbow osteoarthritis, to include as secondary to service-connected residuals of fractures of the right second and third toes and left knee patellofemoral degenerative joint disease. 5. Entitlement to service connection for left elbow osteoarthritis, to include as secondary to service-connected residuals of fractures of the right second and third toes and left knee patellofemoral degenerative joint disease. 6. Entitlement to a special home adaptation grant. 7. Entitlement to specially adapted housing. 8. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active service from March 1973 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs Regional Office (RO) in New Orleans, Louisiana. The Veteran was afforded a video conference hearing before the undersigned Veterans Law Judge in May 2011. A written transcript of this hearing has been prepared and incorporated into the evidence of record. The issues of entitlement to a disability evaluation in excess of 30 percent for PFB, entitlement to a special home adaptation grant, entitlement to specially adapted housing and entitlement to TDIU were remanded by the Board in February 2012 for additional development. In May 2013, the Board reopened the claims for entitlement to service connection for a right knee disorder, right great toe disorder, a back disorder, and a right elbow disorder, denied a higher disability rating for pseudofolliculitis barbae (PFB), and remanded the remaining issues for additional development. The Court held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ('It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.') A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 2009) (to the effect that, when determining the scope of a claim, the Board must consider 'the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim'). The Veteran filed a claim for a disability of the sacroiliac joint. However, based on the evidence in the record, the Board has recharacterized this claim to encompass a claim for a back disorder, as noted above. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Service connection claims The Veteran has claimed that he has disabilities of the right knee, right great toe, back, and right and left elbows that are secondary to his service-connected residuals of fractures of the right second and third toes. This case has been remanded several times already, and unfortunately further development is necessary. As the Veteran is additionally service-connected for left knee patellofemoral degenerative joint disease, which may have an effect on his gait, the Board will consider whether his claimed disabilities are secondary to this disorder as well. The most recent examination was provided in July 2013, in adherence with the Board's May 2013 examination instructions. Among other things, the examiner was to provide an opinion as whether the Veteran's current right knee, right great toe, sacroiliac joint and right and left elbow disorders had been aggravated by his service-connected residuals of fractures of the right second and third toes or left knee patellofemoral degenerative joint disease, taking into consideration the Veteran's altered gait due to his service-connected orthopedic disabilities, and the added stress on his upper extremities due to his use of a walker to ambulate. With regard to aggravation, the July 2013 VA examiner opined that it was less likely as not that the Veteran's right knee, right great toe, sacroiliac joint and left and right elbow disorder had been aggravated by his service-connected residuals of fractures of the right second and third toes or left knee patellofemoral degenerative joint disease. She provided the rationale that there was no adequate documentation to support the Veteran's claim, noted the information provided in the opinion rendered in December 2012, and opined that the previously noted degenerative joint disease of the right knee and right great toe, degenerative joint disease of the sacroiliac joint, and degenerative joint disease of the right elbow were age-related. She also found that there was no evidence of a left elbow disorder. This opinion requires clarification for the following reasons. First, the examiner had noted earlier in the report that the Veteran did not have a diagnosis of degenerative joint disease of the sacroiliac joint. Therefore, she must clarify her findings as to whether the Veteran has degenerative joint disease of the sacroiliac joint. In addition, the examiner noted that there was evidence of degenerative changes in the thoracolumbar spine and lumbar strain. As noted in the introduction to this case, while the Veteran has claimed a disability of the sacroiliac joint, the Board finds that his claim applies to any disabilities of the back. As such, an opinion with regard to his lumbar spine disabilities should be obtained. The examiner found that the Veteran did not have a disorder of the left elbow, apparently basing her opinion on an October 2010 X-ray reflecting "no acute bony injury." However, the record includes an X-ray in October 1999 reflecting degenerative changes in the left elbow. The examiner should be asked to clarify whether the Veteran has degenerative changes in his elbow and, if this is not found, to explain why the October 1999 X-ray reflects degenerative changes. Finally, the fact that the claimed disorders are age-related does not preclude the possibility that the Veteran's service-connected disabilities have aggravated them beyond the natural progression of the illness. The examiner must provide an opinion as to whether the Veteran's service-connected disabilities have aggravated his right knee, right great toe, sacroiliac joint and left and right elbow disorder beyond the natural progression of the disease, regardless of whether they are age-related. Specially Adapted Housing and Special Home Adaptation Grant The Veteran contends that he is entitled to assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) special home adaptation grant. Further development of the Veteran's claims is necessary before appellate review may proceed. The Veteran is not presently receiving compensation for permanent and total service-connected disability. However, he currently has a claim for TDIU benefits and claims for entitlement to service connection for disabilities of the upper and lower extremities that are being remanded for further development. Therefore, the Board determines that the issue of entitlement to a grant for specially adapted housing is inextricably intertwined with the issue of entitlement to TDIU benefits. See Harris, 1 Vet. App. at 183 (two issues are 'inextricably intertwined' when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). As such, the Board defers ruling on this matter until after the mandates of the Remand have been completed. TDIU Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). Nonetheless, even if the Veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16(a) upon readjudication of his service connection claims, he still may receive a TDIU on an extra-schedular basis if it is determined he is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b) (2013). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Presently, the Veteran is service-connected for pseudofolliculitis barbae (rated as 30 percent disabling), residuals of a fracture to the right second and third toes (rated as 30 percent disabling), and patellofemoral degenerative joint disease of the left knee (rated as 10 percent disabling), for a combined disability evaluation of 60 percent. As such, the Veteran does not meet the percentage requirements laid out in 38 C.F.R. § 3.340, as he does not have a single disability evaluation of 40 percent or higher. However, the Veteran's service connection claims are also being remanded at this time. Therefore, the Veteran could be found to meet the percentage requirements for a TDIU rating under 4.16(a) upon readjudication of these issues. As such, the issue of entitlement to TDIU benefits is inextricably intertwined with the issues being remanded herein. See Harris, 1 Vet. App. at 183 (two issues are 'inextricably intertwined' when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The record contains numerous medical and lay statements suggesting that the Veteran is not able to perform manual labor. He also testified during his May 2011 hearing that sedentary work was not available where he lived. The record contains a finding by VA's Vocational Rehabilitation and Employment Division, determining that he is not a candidate for their services since he will be unable to reengage in competitive employment. In addition, the examiner who provided the July 2013 VA examination opined that the Veteran's service-connected disabilities would prevent him from participating in any physical labor that required prolonged walking, standing, heavy lifting or stair climbing, but that sedentary labor would be feasible. When there is plausible evidence that a Veteran is unable to secure and follow a substantially gainful occupation, without any affirmative evidence to the contrary, a Veteran's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Compensation and Pension Director. If, after adjudicating the service connection claims on appeal, the Veteran is not found to meet the schedular requirements for TDIU following the readjudication of the claims being remanded, the RO/AMC should submit the Veteran's claim for TDIU to the Compensation and Pension Director for extraschedular consideration under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims folder should be returned to the examiner who provided the July 2013 examination, for an etiological opinion addressing the issues set out below. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether the Veteran has a diagnosis of degenerative joint disease of the sacroiliac joint. Within the examination report (page 8 of the yellow copy in the claims folder) the examiner noted that there was no evidence of degenerative joint disease of the sacroiliac joints; however, in the opinion, (on page 24 of the same report), the examiner found that the Veteran had degenerative joint disease of the sacroiliac joint. The examiner must clarify her findings as to whether the Veteran has degenerative joint disease of the sacroiliac joint. The examiner should also clarify whether there is a disorder of the left elbow, addressing the X-ray in October 1999 reflecting degenerative changes, and the October 2010 X-ray reflecting "no acute bony injury." The examiner should clarify whether the Veteran has degenerative changes in his elbow and, if this is not found, explain why the October 1999 X-ray reflects degenerative changes. The examiner noted that there was evidence of degenerative changes in the thoracolumbar spine and lumbar strain. As noted in the introduction to this case, while the Veteran has claimed a disability of the sacroiliac joint, the Board finds that his claim applies to any disabilities of the back. As such, an opinion with regard to whether his lumbar spine disabilities are secondary to his service-connected disabilities should be obtained. As such, the examiner should provide an opinion as to whether (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's current right knee, right great toe, back, and left and right elbow disorders had an onset in service, had an onset in the year immediately following any period of service, or are otherwise the result of a disease or injury in service? (b) Is it at least as likely as not (50 percent probability or more) that the Veteran's current right knee, right great toe, back, and left and right elbow disorder were caused (in whole or in part) by his service-connected residuals of fractures of the right second and third toes or left knee patellofemoral degenerative joint disease? (c) Is it at least as likely as not (50 percent probability or more) that the Veteran's current right knee, right great toe, back, and left and right elbow disorder were aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected residuals of fractures of the right second and third toes or left knee patellofemoral degenerative joint disease? In this regard, the examiner previously found that these disorders were age-related. It would appear that the fact that the claimed disorders are age-related does not preclude the possibility that the Veteran's service-connected disabilities have aggravated them beyond the natural progression of the illness. Therefore, the examiner must provide an opinion as to whether these disabilities have been aggravated beyond the natural progression of the disorder, regardless of whether they are age-related. If the Veteran's current right knee, right great toe, back, and left and right elbow disorder were aggravated by his service-connected residuals of fractures of the right second and third toes or left knee patellofemoral degenerative joint disease, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 2. Readjudicate the claims on appeal. If the Veteran does not meet the percentage requirements for a TDIU rating under 38 C.F.R. § 4.14(a) after readjudicating his service connection claims, refer the TDIU claim to the Compensation and Pension Director for extraschedular consideration under 38 C.F.R. § 4.16(b). If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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. 2012). _________________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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).