Citation Nr: 1336925 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 06-38 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for flat feet, to include as secondary to a service-connected disability 2. Entitlement to service connection for residuals of neck injury, to include as secondary to a service-connected disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from June 1981 to February 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. In September 2006, the Veteran testified at a personal hearing over which a Decision Review Officer of the RO presided. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in September 2010 at which time it was remanded for additional development. It is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that a Written Brief Presentation has been submitted on behalf of the Veteran by his representative. This has been considered by the Board in adjudicating this matter. The remaining documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). For the reasons set forth below, the current appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2013). Flat Feet In the April 2013 addendum opinion, the same VA examiner who evaluated the Veteran's bilateral foot condition in March 2012 once again determined that the Veteran's pes planus clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The VA examiner also provided a well-articulated rationale for the opinion reached. However, in the October 2013 Written Brief Presentation, the Veteran, through his representative, claimed that his pes planus was secondary to his service-connected bilateral knee and back disabilities. Specifically, the Veteran asserts that he developed an altered gait as a result of his service-connected conditions, which may have caused him to place additional stress upon his feet, thereby creating symptomatic flat feet. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability either (a) was caused by or (b) is aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). However, because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which favors the claimant. In light of the Veteran's contentions, the Veteran's claims file should be referred to the same VA examiner who evaluated him in April 2013, for an addendum opinion addressing whether his flat feet are secondary to his service-connected chronic lumbar strain and/or his degenerative joint disease of both knees. Residuals of Neck Injury Pursuant to the May 2012 Remand, the Veteran was afforded a VA orthopedic examination in April 2013 specifically to determine the nature and etiology of his claimed cervical spine disorder. Based on his discussion with, and evaluation of the Veteran, the VA examiner determined that the Veteran's cervical spine disorder was not related to active service, and further opined that said disability was neither proximately due to, nor aggravated by, his service-connected lumbar spine and knee disabilities. According to the examiner, the medical literature did not support the possibility of a causative relationship between the Veteran's cervical degenerative disc disease and his service-connected lumbar spine and knee conditions. Further review of the Virtual VA claims file reflects that the Veteran was granted service connection for a mood disorder, as secondary to his service-connected chronic lumbar strain and degenerative joint disease of both knees, which was rated as 50 percent disabling, effective August 13, 2007. See March 2008 rating action. Subsequent to the issuance of the August 2013 and September 2013 Supplemental Statements of the Case. The Veteran submitted evidence in the form of an internet article issued through the National Institute of Health (NIH) which reviewed and discussed results from a clinical study focusing on the potential relationship between chronic pain and mood disorders. In the October 2013 Written Brief Presentation, the Veteran, through his representative, asserted that his neck problems may be attributed to his mood disorder. As such, the same VA examiner who evaluated him in April 2013, should provide an additional opinion addressing whether his current neck disability is secondary to his service-connected mood disorder. TDIU Service connection has been established for degenerative joint disease of the left knee, which is rated 20 percent disabling; degenerative joint disease of the right knee, which is rated 10 percent disabling; chronic lumbar strain with osteoarthritis, rated as 40 percent disabling; and mood disorder, which is rated as 50 percent disabling. His current combined disability rating for these service-connected disabilities is 80 percent. See 38 C.F.R. §§ 4.16(a), 4.25. In the April 2013 medical opinion, the VA examiner determined that while the Veteran's physical disabilities create very significant occupational and functional limitations, neither of these disabilities prevent him from securing or following a substantially gainful employment. According to the examiner, the Veteran was capable of performing only limited, "sedentary-type" occupations. Although the April 2013 VA examiner addressed whether the Veteran's service-connected physical disabilities prevented him from securing or maintaining substantially gainful employment, he did not discuss the effect of the Veteran's psychiatric disability on his ability to engage in full-time employment. As the Veteran's claims are being remanded for additional evidentiary development, the same VA examiner should also provide an addendum opinion addressing the effect of the Veteran's service-connected psychiatric disability on his employability. The Board notes that the outcome of the other claims being remanded herein could impact the Veteran's claim for entitlement to a TDIU. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disabilities should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 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) (2012). Expedited handling is requested.) 1. The RO/AMC shall provide the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises him of the information and evidence necessary to substantiate his claims for service connection for flat feet and residuals of neck injury, to include as secondary to a service-connected disability. 2. The RO/AMC shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disabilities and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 3. The RO/AMC shall then, refer the claims file, a copy of this Remand, and a copy of all medical records on the Virtual VA claims file; to the same examiner who evaluated the Veteran in April 2013 for his asserted flat feet disability, or another appropriate VA physician if this examiner is unavailable. Following a review of the record, the examiner must specifically make address the following questions: (a) Is it at least as likely as not that the appellant's flat feet were caused (in whole or in part) by a service-connected disability, to specifically include the chronic lumbar sprain and/or his service-connected degenerative joint disease of the right and left knee? (b) Is it at least as likely as not that the appellant's flat feet are aggravated (permanently worsened) by a service-connected disability, to specifically include the chronic lumbar sprain and/or degenerative joint disease of the right and left knee? 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 reports of symptomatology, reasons for doing so must be provided. The absence of evidence of treatment for flat feet in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 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 must provide a rationale for each opinion given. The examiner should reconcile any opinions with the VA treatment records, the private medical opinions, the VA medical opinions, and lay statements of the Veteran. 4. The RO/AMC shall then, refer the claims file, a copy of this Remand, and a copy of all medical records on the Virtual VA claims file; to the same examiner who evaluated the Veteran for his cervical spine disability, or another appropriate VA physician if this examiner is unavailable. Following a review of the record, the examiner must specifically make address the following questions: (a) Is it at least as likely as not that the appellant's cervical spine disability was caused (in whole or in part) by a service-connected disability, to specifically include the mood disorder? (b) Is it at least as likely as not that the appellant's cervical spine disability is aggravated (permanently worsened) by a service-connected disability, to specifically include the mood disorder? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran's reported symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a cervical spine disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 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 must provide a rationale for each opinion given. The examiner should reconcile any opinions with the VA treatment records, the private medical opinions, the VA medical opinions, and lay statements of the Veteran. 5. The RO/AMC shall then, refer the claims file, a copy of this Remand, and a copy of all medical records on the Virtual VA claims file; to the same examiner who evaluated the Veteran for TDIU claim, or another appropriate VA physician if this examiner is unavailable. The examiner is requested to provide an addendum opinion commenting on the effect of the service-connected mood disorder on the Veteran's ability to engage in any type of full-time employment, including whether any form of 'light duty' or 'sedentary work' is possible and whether, in the examiner's opinion, this service-connected disability is of such severity as to result in an inability to obtain and to maintain employment. If the examiner finds that the Veteran is employable, he or she should explain how the Veteran is capable of obtaining or maintaining any type of employment in light of any mental restrictions resulting from his service-connected mood disorder. 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 must provide a rationale for each opinion given. The examiner should reconcile any opinions with the VA treatment records, the private medical opinions, the VA medical opinions, and lay statements of the Veteran. 6. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 7. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. Claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting 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) (2013).