Citation Nr: 1603740 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 14-20 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right hip disorder. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left hip disorder. 4. Entitlement to a higher evaluation for residuals of a left foot injury with metatarsal and navicular fractures, rated as 20 percent disabling prior to July 30, 2012. 5. Entitlement to a higher evaluation for residuals of a left foot injury with metatarsal and navicular fractures, rated as 20 percent disabling since July 30, 2012 6. Entitlement to a compensable evaluation for bilateral hearing loss. 7. Entitlement to a total rating for individual unemployability based on service-connected disability. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from September 1970 to September 1972. This case is before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The case was certified by the New York RO. In August 2014 the appellant testified before the undersigned at a Travel Board hearing held at the RO. A claim of entitlement to a total disability evaluation based on individual unemployability was raised on appeal and is intertwined with the increased rating claims presented. See Rice v. Shinseki, 22 Vet. App. 447 (2009). There is a paper claims file in this case, and additional information in the Virtual VA and Veterans Benefits Management System (VBMS) databases. The issues of entitlement to service connection for back and bilateral hip disorders, entitlement to an increased rating for hearing loss, entitlement to an increased rating for residuals of a left foot injury with metatarsal and navicular fractures since July 30, 2012, and entitlement to a total disability evaluation based on individual unemployability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a September 2009 rating decision VA denied entitlement to service connection for hip disorders, and a petition to reopen the issue of entitlement to service connection for a back disorder. A timely appeal was not perfected, and new and material evidence was not submitted within a year of that decision. 2. Additional evidence has since been received relating to unestablished facts necessary to substantiate these claims. 3. Prior to July 30, 2012, residuals of a left foot injury with metatarsal and navicular fractures were not more than moderately severe. CONCLUSIONS OF LAW 1. A September 2009 rating decision denying entitlement to service connection for hip disorders, and denying a petition to reopen a claim of entitlement to service connection for a back disorder is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 20.200, 20.201 (2015). 2. New and material evidence has been received to reopen the previously denied claims. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria are not met for an evaluation higher than 20 percent for residuals of a left foot injury with metatarsal and navicular fractures prior to July 30, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014) provides VA's duties to notify and assist a claimant with development of a claim for compensation benefits. See also, 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2015). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. Given that the claims of entitlement to service connection are reopened and remanded, VCAA compliance will be addressed when a decision is later issued. With respect to the claim of entitlement to an increased rating for residuals of a left foot injury with metatarsal and navicular fractures, the Veteran has been provided satisfactory VCAA notice, and proper assistance through obtaining medical records, along with scheduled VA examination. The Veteran provided statements to support his claims, and a Board hearing was held during which the Veteran was provided information as to the evidence needed to support his claims. Disability evaluations are determined by applying the VA rating schedule, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated under criteria identified by Diagnostic Codes. Left foot injury residuals through July 30, 2012, The Veteran underwent a VA examination of his left foot on July 30, 2012. He reported the recent onset of constant pain on the dorsum and an occasional pins and needles feeling. He stated that he could not wear dress shoes because they were too tight and caused pain. Physical examination revealed no evidence of a Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, acquired claw foot (pes cavus), and no evidence of either malunion or nonunion of tarsal or metatarsal bones. There was no evidence of any other left foot injury, and he did not show evidence of bilateral weak foot. A cane was used as an assistive device, and for outdoor ambulation since hip surgery a year or two ago. X-rays showed degenerative or traumatic arthritis, with cortical thickening of the third metatarsal and ossific densities and deformity at navicular. The diagnosis was left navicular fracture, and left metatarsal fracture. The examiner opined that the disorder did not impact his ability to work. The claim must be denied. In this regard prior to July 31, 2012 residuals of a left foot injury with navicular and metatarsal fractures were manifested by a severe foot disability. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Veteran's disorder involves healed fractures of bones within the feet. His main symptoms are pain, and an occasional pins and needles feeling. Otherwise, there are basically no ratable signs or symptoms of the disorder. Medical professionals have found that the disorder causes no impact on his ability to work. There also is no higher evaluation available under any other diagnostic code that applies. Therefore, there is no evidence of entitlement to an increased rating under the VA rating schedule. The Board has considered the appellant's entitlement to an extrascheduler evaluation under 38 C.F.R. § 3.321(b)(1). The threshold factor for extrascheduler consideration is that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluation for that service-connected disability is inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). The evidence in this case does not show that this disorder is manifested by an exceptional disability picture. Comparison between the Veteran's current rating and the criteria found in the rating schedule shows that the rating criteria reasonably describe disability level and symptomatology. The Veteran and representative have not identified any symptoms not recognized by the rating criteria, and there is no evidence that the disorder is manifested by pathology so as to conclude that the rating criteria are inadequate. Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extrascheduler rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, however, even after applying the doctrine of reasonable doubt, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extrascheduler consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. The requirements for an extra scheduler evaluation for service-connected disability under 38 C.F.R. § 3.321(b)(1) have not been met. Claims to reopen An April 1981 rating decision denied entitlement to service connection for a back disorder. The Veteran did not perfect a timely appeal following that decision or submit new and material evidence within a year thereof. Hence, the April 1981 rating decision is final. In a September 2009 rating decision VA denied a petition to reopen a claim of entitlement to service connection for a back disorder, as well as original claims of entitlement to service connection for right and left hip disorders to include secondary to residuals of a left foot injury with navicular and metatarsal fractures. Once again the Veteran did not perfect a timely appeal following that decision or submit new and material evidence within a year thereof. Hence, the September 2009 rating decision is final. 38 U.S.C.A. § 7105. When a claim to reopen is presented VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In support of the claims to reopen the appellant has submitted a September 2014 letter from Dr. T.L.B., VA physician, who opined that claimed back and hip disorders including residuals of hip replacement procedures, were related to the same in-service injury during which the appellant's left lower leg and foot were crushed. This evidence which suggests a link between the claimed disorders and service, to include due to service connected residuals of a left foot injury is "new and material." 38 C.F.R. § 3.156(a). Therefore, the claims are reopened. ORDER New and material evidence having been received, claims of entitlement to service connection for a back disorder, and right and left hip disorders are reopened. Entitlement to a higher rating than 20 percent prior to July 30, 2012 for residuals of a left foot injury with metatarsal and navicular fractures, is denied. REMAND Given the appellant's August 2014 testimony before the undersigned concerning the nature and severity of his residuals of a left foot injury with navicular and metatarsal fractures, given the fact that he is competent to state that he suffers from increased pain, and given that the left foot has not been examined for compensation purposes since July 2012, the Board finds further development in order. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). In light of the Board's decision to reopen the claims for service connection they must now be considered on the merits after fulfilling the duty to assist. With respect to the duty to assist the Board finds that a VA examination is required to address whether there is a causal relationship of back and hip problems to either the Veteran's service, or his service-connected left foot disorder. Earlier VA opinions did not give enough reasoning. In addition, prior opinions only partly considered secondary service connection, by not stating whether the left foot disorder aggravated claimed disability over time. See 38 C.F.R. § 3.310(a). With respect to the claim of entitlement to an increased rating for a bilateral hearing loss the Veteran testified that he recently had been issued new hearing aids apparently because hearing loss worsened. In light of that assertion, further development is in order. Green. Finally, in light of the foregoing development, the issue of entitlement to a total disability evaluation based on individual unemployability requires further development. Accordingly, these claims are REMANDED for the following action: 1. The RO must send the Veteran a letter pursuant to the VCAA addressing the claim of entitlement to a total disability evaluation based on individual unemployability in accordance with 38 U.S.C.A. §§ 5102, 5103 and 5103A (West 2014), and all other applicable legal precedent. 2. Send the Veteran a copy of VA Form 21-8940, Formal Application for a total disability evaluation based on individual unemployability due to service connected disorders. 3. Obtain the Veteran's VA Medical Center treatment records dated since July 31, 2012 and associate them with the claims file. If the AOJ cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 4. After any additional evidence is associated with the claims file, schedule the Veteran for a VA audiological examination to address the nature and extent of his bilateral hearing loss. The examiner must be provided access to the claims folder, Virtual VA file and VBMS file for review in conjunction with the examination. All indicated tests and studies should be performed, including audiometric testing and speech discrimination scores, and all findings should be set forth in detail. The complete audiological findings obtained should be accurately reported, consistent with the rating criteria at 38 C.F.R. § 4.85, along with any further signs and symptoms of hearing loss. Also indicate the impact, if any, of hearing loss upon occupational capacity and ordinary conditions of daily life. A complete and well-reasoned rationale must be provided for any opinion offered. 5. Then schedule a VA orthopedic examination to address the nature and etiology of any diagnosed back and/or hip disorder. The examiner must be provided access to the claims folder, Virtual VA file and VBMS file for review in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail. Following the examination the examiner must opine whether it is at least as likely as not that any diagnosed back and hip disorder is due to the Veteran's active military service. If arthritis of the back and/or hips is diagnosed the examiner must opine whether it is at least as likely as not that the disorder was manifested by x-ray evidence of arthritis with painful motion within one-year of discharge from active duty in September 1972. If a back and/or hip disorder is not directly due to service, and if arthritis was not manifested as required within a year of the appellant's discharge from active duty, then address whether it is at least as likely as not that any diagnosed back and/or hip disorder is caused by or permanently aggravated by residuals of a left foot injury with navicular and metatarsal fractures. The examiner must consider the prior March 1981 and March 2009 VA examinations and opinions, as well as the September 2014 VA physician's letter. A complete rationale must be provided for any opinion offered. 6. The Veteran should be afforded a VA podiatric examination to determine the severity of any residuals of a left foot injury with navicular and metatarsal fractures. In accordance with the latest worksheet for rating such disorders, the examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of the disorder. The examiner must describe all functional impairment that the disorder has on the Veteran's ability to work. The examiner must specify in any report that the claims file, consisting of Virtual VA and VBMS records, has been reviewed. The examiner must offer an opinion addressing how this disorder impacts the appellant's ability to work. The examiner must provide a fully reasoned and supported rationale for any opinion offered. 7. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 8. The review the claims file. If any directive specified in this remand has not been fully complied with, undertake appropriate corrective action. 9. Then readjudicate the claims in light of all additional evidence received, and also adjudicate the claim of entitlement to a total disability evaluation based on individual unemployability. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 2014). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs