Citation Nr: 1506961 Decision Date: 02/13/15 Archive Date: 02/18/15 DOCKET NO. 10-25 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a left big toe disability. 2. Entitlement to service connection for a right ankle condition, to include achilles tendonitis. 3. Entitlement to service connection for a left ankle condition, to include achilles tendonitis. 4. Entitlement to an initial rating in excess of 10 percent for service-connected lumbago with degenerative changes and disc herniation, status post-discectomy prior to December 11, 2012, and in excess of 20 percent thereafter. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 6. Entitlement to service connection for sleep apnea. 7. Entitlement to a disability rating in excess of 10 percent for residuals of head trauma. 8. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to May 1981 and from December 1985 to November 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, a July 2013 decision of the Appeals Management Center (AMC) in Washington, DC, and an August 2013 decision of the Chicago, Illinois RO. The Veteran's claims file remains in the jurisdiction of the Chicago RO. The Veteran testified at a hearing conducted by the undersigned Acting Veterans Law Judge in October 2011. A transcript of the hearing has been associated with the Veteran's VA claims file. In November 2012, the Board, in part, denied the Veteran's claims of entitlement to service connection for a left big toe disorder, a right ankle disorder, and a left ankle disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In a July 2014 Memorandum Decision, the Court vacated the Board's denial of service connection for a left big toe disorder, a right ankle disorder, and a left ankle disorder. These issues were then remanded for further adjudication. The Board's November 2012 decision also remanded the issues of entitlement to an increased rating for lumbago and entitlement to service connection for bilateral achilles tendonitis and residuals of a head injury. While the issue of service connection for residuals of a head injury was granted in a July 2013 rating decision and is no longer in appellate status, the remaining issues have been recertified to the Board. In November 2012, the Board also denied the Veteran's claims of entitlement to increased ratings for the service-connected left eyebrow scar, hemorrhoids, and left ring-finger fracture residuals. The Veteran did not appeal the Board's denial of these issues and this portion of the Board's decision was not set aside in the July 2014 Memorandum Decision. Accordingly, these issues are no longer in appellate status. As discussed in greater detail below, the previously separate issues of entitlement to service connection for a bilateral ankle disorder and bilateral achilles tendonitis have been recharacterized as listed on the title page. The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for migraine headaches was raised in an August 2013 claim, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Similarly, in July 2013, the AMC noted that the following issues had been raised by the record but had not been adjudicated by the AOJ: entitlement to service connection for depression, as secondary to sleep apnea and the service-connected lumbago; entitlement to service connection for a left knee scar, as secondary to the service-connected left knee arthritis; and, entitlement to service connection for a right shoulder scar, as secondary to the service-connected status-post right shoulder rotator cuff repair with degenerative changes. The Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, additional development is required prior to adjudicating the Veteran's appeal. I. VA Examinations A. Left Big Toe In denying the Veteran's claim of entitlement to service connection for a left big toe disorder, the Board relied heavily on a July 2007 VA examination which found that he did not have a current disability. In the July 2014 Memorandum Decision, the Court observed that the record did not contain X-ray studies of the Veteran's left great toe and "the absence of x-rays should have warranted a remand by the Board to obtain them or an explanation of why obtaining them was unnecessary." See the Memorandum Decision, page 3. It was further noted that the July 2007 VA examiner stated that the examination was a screening examination, and not intended to "elicit the detailed information about specific conditions that is necessary for rating purposes." Id. Under these circumstances, the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed disability. Such an examination should include X-ray studies. B. Bilateral Ankle Disabilities As noted in the Introduction, the Veteran's claims of entitlement to service connection for a bilateral ankle disability and bilateral achilles tendonitis were previously adjudicated as separate disabilities. To wit, in the November 2012 decision, the Board denied service connection for a right or left ankle disability and remanded the issue of service connection for bilateral achilles tendonitis. In July 2014, the Court noted that the Board's denial of service connection for a right ankle disability failed to address a 2009 VA examination which identified an avulsion fracture of the right foot at the tip of the medial malleolus. The Court also noted that it was unclear why the Veteran's claims were adjudicated separately "given the inextricably intertwined nature of a bilateral ankle disability and bilateral ankle tendonitis." See Memorandum Decision, 2. Pursuant to the Board's remand, the Veteran was afforded a VA examination in December 2012. While the examiner noted that the Veteran was diagnosed with achilles tendonitis in 1996, he concluded that that there was no present evidence of tendonitis. Upon review, however, it is unclear whether the Veteran has had achilles tendonitis at any point during the appeal period. Moreover, X-ray studies of the Veteran's ankles were not performed during the December 2012 VA examination and the examiner did not comment on the prior diagnosis of an avulsion fracture. Under these circumstances, a new VA examination is necessary. C. Lumbago The Veteran was afforded a VA examination to determine the extent of his service-connected spine disability in December 2012. Following this examination, VA received additional medical records that suggest a worsening of his disability. Specifically, July 2013 private medical records now suggest that the Veteran experiences peripheral radiculopathy in his left lower extremity. These records also indicate that the Veteran received an epidural steroid injection in August 2013. Since these records indicate a worsening of the Veteran's service-connected lumbar spine disability, a new VA examination is warranted. II. Treatment records As noted, the record reflects that the Veteran has been receiving ongoing VA and private medical treatment. On remand, the Veteran's treatment records should be obtained and associated with his claims folder. III. TDIU The record reflects that the Veteran has been awarded service connection for multiple disabilities and is currently in receipt of a combined 70 percent disability rating. In addition, in August 2013, the Veteran filed an application for increased compensation based on unemployability. The Court has held that a claim for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 454. This matter warrants additional development and adjudication on appeal and is inextricably intertwined with the increased rating claim. IV. Statement of the Case In a July 2013 rating decision, the RO granted service connection for residuals of a head trauma and radiculopathy of the right lower extremity. While the Veteran indicated his disagreement with this decision in August 2013, a Statement of the Case (SOC) has not been issued. Similarly, in an August 2013 rating decision, the RO denied the Veteran's claim of entitlement to service connection for sleep apnea. While the Veteran indicated his disagreement with this decision in September 2013, a SOC has not been issued. Accordingly, the Board must remand these claims for issuance of an SOC. V. Supplemental Statement of the Case Following the July 2013 Supplemental Statement of the Case, additional evidence was associated with the Veteran's claims file. This evidence has not been considered by the AOJ and no waiver of initial consideration is of record. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issues on appeal. Attempt to obtain any identified records, to include any outstanding records of VA medical treatment (generated since July 2013). All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran's VA claims folder. The Veteran should also be notified that he may submit evidence or treatment records to support his claim. 2. After completing the action requested in item 1, schedule the Veteran for a VA examination to determine the nature and likely etiology of his claimed left big toe disability. The Veteran's claims file must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished, however, in light of the Court's decision, if X-ray studies are not conducted, the examiner should provide a rationale for why such studies are not medically necessary. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that any identified left big toe disability had causal origins in service or is otherwise related to the Veteran's active duty service. 3. After completing the action requested in item 1, schedule the Veteran for a VA examination to determine the nature and likely etiology of his claimed bilateral ankle disabilities. The Veteran's claims file must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished, however, in light of the Court's decision, if X-ray studies are not conducted, the examiner should provide a rationale for why such studies are not medically necessary. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that any identified ankle disability had causal origins in service or is otherwise related to the Veteran's active duty service. In this capacity, the examiner should comment on the June 2009 diagnosis of avulsion fracture at the tip of the medial malleolus and whether the Veteran has had achilles tendonitis at any point since he filed his claim in August 2007. 4. After completing the action requested in item 1, schedule the Veteran for a VA examination to determine the current severity of the service-connected lumbago with degenerative changes and disc herniation post-discectomy. The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard. The examiner should discuss any associated neurological abnormalities-including, but not limited to, radiculopathy and bowel and bladder impairment. 5. Issue a SOC as to the issues of entitlement to service connection for sleep apnea and entitlement to initial ratings in excess of 10 percent for residuals of head trauma and radiculopathy of the right lower extremity. Advise the Veteran of his appeal rights. If an appeal is perfected in any of these matters, the case should be returned to the Board, if otherwise in order. 6. After undertaking any additional development deemed appropriate (including any development needed regarding entitlement to TDIU), and giving the Veteran full opportunity to supplement the record, readjudicate the issues on appeal, including entitlement to TDIU, and upon consideration of any additional evidence added to the record since the July 2013 SSOC. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a SSOC and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West 2014). _________________________________________________ M. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2014).