Citation Nr: 1602528 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 13-15 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut THE ISSUES 1. Entitlement to a rating higher than 10 percent for left sural neuropathy. 2. Entitlement to a separate rating for left tarsal tunnel syndrome. 3. Entitlement to service connection for a bilateral shoulder disability. 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to service connection for bilateral carpal tunnel syndrome 6. Entitlement to service connection for bilateral pes planus 7. Entitlement to service connection for bilateral hammertoes. 8. Entitlement to service connection for bilateral bunion. 9. Entitlement to service connection for a disability manifested by bilateral heel pain, claimed as heel spurs. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from February 1985 to July 1990. This appeal comes before the Board of Veterans' Appeals (Board) from decisions by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. In March 2014, the Veteran and his spouse provided testimony in conjunction with the increased rating claim before the undersigned Veterans Law Judge. In October 2015, the Veteran provided testimony in conjunction with the service connection claims and claim for a separate rating before another Veterans Law Judge. Transcripts of both hearings are of record. In November 2015, the Veteran was informed that the Veterans Law Judge who presided at the October 2015 hearing was not available to participate in a decision on the appeal. He was also informed of his options for another Board hearing. In December 2015, the Veteran responded that he did not wish to appear at another Board hearing. The record before the Board consists of electronic records in Virtual VA and the Veterans Benefits Management System. REMAND The record indicates that the Veteran is in receipt of benefits from the Social Security Administration (SSA). Records in the possession of the SSA could be supportive of the Veteran's claim; thus, further development to obtain those records is in order. Regarding the increased rating claim, in an April 2015 remand, the Board directed the originating agency to provide the Veteran a VA examination to determine the severity of the sural nerve impairment and a determination of the most analogous peripheral nerve to the sural nerve. Although an examination was performed in July 2015, the examiner did not provide this information. In this regard, the Board notes that although the examiner noted impairment of three different peripheral nerves, the examiner did not indicate whether any or all the nerve impairment is analogous to the service-connected sural nerve impairment. Compliance with remand directives by the originating agency is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). The appeal must again be remanded for compliance with the Board's remand directives. Regarding the claim for a separate rating for tarsal tunnel, an opinion is needed from the July 2015 VA examiner to determine whether the posterior tibial nerve impairment is the same thing as tarsal tunnel syndrome and whether it is secondary to the service-connected left ankle disability, status-post surgical treatment. Regarding the claims for service connection for the cervical spine and shoulder disabilities, addendum opinions are needed to determine whether a disability is related to service. Although the record includes opinions, the opinions do not address the March 1985 diagnosis of neck strain, the February and March 1989 treatment for the left shoulder, the July 1989 treatment for the right shoulder, or the Veteran's contention that the disabilities are due to carrying a heavy rucksack. With regard to the claims for service connection for bunions, heel spurs, and hammertoes, the record documents a finding of heel spur in a March 2012 X-ray report and diagnoses of hammertoe and bunion in an October 2015 Disability Benefits Questionnaire. In light of these diagnoses, addendum opinions are needed to address whether any of the disorders are related to service. Accordingly, this case is remanded to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claims. 2. Undertake appropriate development to obtain a copy of any SSA disability determination for the Veteran and a copy of the records upon which the determination was based. 3. Obtain an addendum from the August 2015 VA examiner addressing the following. a. The examiner must clarify the degree of severity of the left sural neuropathy. The examiner must specifically identify the peripheral nerve that is/are analogous to the left sural nerve impairment. b. The examiner must clarify whether the Veteran has tarsal tunnel syndrome, including whether the posterior tibial nerve impairment is tarsal tunnel syndrome. If the Veteran has left tarsal tunnel syndrome, the examiner should state whether there is a 50 percent or better probability that the tarsal tunnel syndrome was caused or permanently worsened by the service connected left ankle disability, status-post surgical treatment. The rationale for the opinion must be provided. If the examiner is unable to provide the required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. If the prior examiner is unavailable, all pertinent evidence of record should be provided to and reviewed by another physician with sufficient expertise who should be requested to provide the required information and opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the required information and opinion. 4. Obtain an addendum opinion from the November 2014 VA examiner as to whether the cervical spine disability and shoulder disabilities are related to service. The examiner should provide an opinion with respect to each shoulder and cervical spine disorder present during the period of the claims as to whether there is a 50 percent or better probability that the disorder originated during the Veteran's active service or is otherwise etiologically related to the Veteran's active service. The rationale for the opinion(s) must be provided, with consideration of the March 1985 diagnosis of neck strain, the February and March 1989 treatment for the left shoulder, the July 1989 treatment for the right shoulder, and the Veteran's contention that the neck and shoulder symptoms are due to carrying a heavy rucksack during service. If the physician is unable to provide any required opinion, he or she should explain why. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. If the prior examiner is unavailable, all pertinent evidence of record should be provided to and reviewed by another physician with sufficient expertise who should be requested to provide the required opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the required opinion. 5. Obtain an addendum opinion from the November 2014 VA examiner as to whether the hammertoes, bunions, and heel spurs are related to service. The examiner should provide an opinion with respect to each such disorder as to whether there is a 50 percent or better probability that the disorder originated during the Veteran's active service or is otherwise etiologically related to the Veteran's active service. The rationale for the opinion(s) must be provided. If the physician is unable to provide any required opinion, the physician should explain why. If the physician cannot provide an opinion without resorting to mere speculation, the physician shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. If the prior examiner is unavailable, all pertinent evidence of record should be provided to and reviewed by another physician with sufficient expertise who should be requested to provide the required opinions with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions. 6. Undertake any other indicated development. 7. Then, readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the U. S. 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 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).