Citation Nr: 1340748 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-19 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for a right foot and ankle disorder, currently rated as 10 percent disabling. 2. Entitlement to service connection for a left leg disorder, to include as due to the service-connected right foot and ankle disorder. 3. Entitlement to service connection for a left foot and ankle disorder, to include as due to the service-connected right foot and ankle disorder. 4. Entitlement to service connection for a right leg disorder, to include as due to the service-connected right foot and ankle disorder. 5. Entitlement to service connection under 38 U.S.C.A. § 1151 for residuals related to VA nose and tonsil surgery. 6. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009, February 2010, and May 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. New evidence has not been added to the record since the most recent supplemental statement of the case (SSOC) in February 2013. 38 C.F.R. §§ 19.31, 20.1304(c) (2013). REMAND The Board finds remand warranted for additional medical inquiry into the claim for an increased rating for a right ankle and foot disorder, and for medical inquiry and commentary on the Veteran's service connection claims (including that asserted under 38 U.S.C.A. § 1151). With regard to the increased rating claim, the Board notes that the Veteran underwent VA compensation examinations in July 2009 and July 2011 which commented on his disability. The record also contains VA treatment records dated during the appeal period up until June 2012. Certain statement of record indicate, however, that the Veteran's disorder may have worsened since the July 2011 VA examination (the findings of which indicated mild disability). In a December 2012 statement of record, the Veteran indicated a worsening of his condition, as did his representative in May and November 2013. In the latter statement, the representative requested a new VA examination, moreover. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). To fairly judge the Veteran's claim for increased rating, more recent medical inquiry is warranted. With regard to the claims for service connection for right leg, left ankle/foot, and left leg disorders, the Veteran has asserted that his disorders are related to service, and to his service-connected right foot/ankle disorder. The record contains no medical inquiry which focuses on the current nature of the claimed disabilities, or which addresses the Veteran's contentions as to direct and secondary service connection. 38 C.F.R. §§ 3.303, 3.310 (2013). As such, remand is warranted for additional medical inquiry. With regard to the claim for service connection under 38 U.S.C.A. § 1151 for a nasal disorder, the Veteran has asserted that he has incurred an additional disability due to faulty VA care. The claims file includes VA treatment records dated in March 1996 showing that the Veteran underwent nasal and tonsil surgery. However, no medical inquiry has been conducted into his claim, addressing whether the procedure caused or aggravated a nasal disorder and whether the additional or aggravated disorder is due to faulty VA care. As such, remand is warranted for a VA compensation examination. The claim for a TDIU is remanded as well because it is inextricably intertwined with the aforementioned claims. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran pursuant to 38 C.F.R. § 3.159 concerning how he can substantiate a claim to service connection on a secondary basis. 38 C.F.R. § 3.310. 2. Attempt to obtain and associate with the claims folder any outstanding VA treatment records. The most recent VA treatment records of file are dated in June 2012. If no additional VA treatment records exist, the claims file should be documented accordingly. 38 C.F.R. § 3.159. 3. Schedule the Veteran for appropriate VA examinations. Any indicated tests should be accomplished. The examiners should review the claims folder prior to examination, to include any newly associated records obtained as a result of this Remand. The examiners are asked to provide a report addressing the current state of the Veteran's disorders. a). With regard to the increased rating claim for a right foot/ankle disorder, the examiner should detail range of motion in the right ankle and the extent to which pain on motion affects the measurements; should comment on whether limitation of the motion in the ankle is best described as mild, moderate, or marked; and should comment on whether the foot disability is best described as mild, moderate, moderately severe, or severe. See 38 C.F.R. § 4.71a, Diagnostic Codes 5271, 5284. b). With regard to the claims to service connection for right leg, left leg, and left ankle/foot disorders, the examiner should determine the nature and etiology of any currently diagnosed lower leg disorders, and comment on: (i) whether it is at least as likely as not that any of the diagnosed disorders is related to any in-service disease, event, or injury? Note that a January 1978 service treatment record notes "pain and swelling in both feet." (ii) whether it is at least as likely as not that any of the diagnosed disorders is due to or caused by the service-connected right foot/ankle disorder. (iii) whether it is at least as likely as not that any of the diagnosed disorders is aggravated by the service-connected right foot/ankle disorder. By aggravation, the Board means an increase in the severity of the underlying disability that is beyond its normal progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to service-connected disability. See 38 C.F.R. § 3.310 (2013). c). With regard to the claim to service connection for a nasal disability under 38 U.S.C.A. § 1151, the examiner should address whether the Veteran has any current disability (or residuals) due to the VA-administered March 1996 nasal and tonsil surgery. The examiner is asked to specifically state whether the procedure caused or aggravated (beyond the normal progress of the disorder) a nasal problem. The examiner should also address whether it is at least as likely as not that any additional disability from the surgery is due to: (i) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA treatment; (ii) an event not reasonably foreseeable in the course of the VA treatment. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. In conducting the examinations and reports, each examiner should consider and refer to the Veteran's competent and credible lay statements of record describing any symptoms he may experience that relate to the disorders at issue in this Remand. 4. Review the medical reports requested above to ensure that the Remand directives have been accomplished. If a question posed is not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 5. After all the above development has been completed, readjudicate the claims on appeal (to include the claim to a TDIU) in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If an issue remains denied, the Veteran should be provided with a SSOC and afforded a reasonable period of time within which to respond thereto. 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). These claims 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. 2013). _________________________________________________ BETHANY L. BUCK 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) (2013).