Citation Nr: 1804764 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-14 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating higher than 20 percent for diabetes mellitus. 2. Entitlement to an initial rating higher (compensable) rating for hypertension. 3. Entitlement to an initial higher (compensable) rating for erectile dysfunction. 4. Entitlement to an initial rating higher than 10 percent for a right wrist disability. 5. Entitlement to an initial rating higher than 10 percent for a left wrist disability. 6. Entitlement to an initial rating higher than 10 percent for a right knee disability. 7. Entitlement to an initial rating higher than 10 percent for a left knee disability. 8. Entitlement to an initial rating higher than 10 percent for bilateral plantar fasciitis with pes planus. 9. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1987 to January 1988; November 2001 to November 2002; November 2004 to July 2005; and from January 2009 to July 2011, including service in Afghanistan from January to December 2009. He also had additional service in the Army Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, that granted service connection and a 20 percent rating for diabetes mellitus, effective July 9, 2011; granted service connection and a noncompensable rating for hypertension, effective July 9, 2011; granted service connection and a noncompensable rating for erectile dysfunction, effective July 9, 2011; granted service connection and a 10 percent rating for a right wrist disability (right wrist strain), effective July 9, 2011; granted service connection and a 10 percent rating for a left wrist disability (left wrist surgical residuals), effective July 9, 2011; granted service connection and a 10 percent rating for a right knee disability (right knee patellofemoral syndrome with chondromalacia), effective July 9, 2011; granted service connection and a 10 percent rating for a left knee disability (left knee patellofemoral syndrome with chondromalacia), effective July 9, 2011; and granted service connection and a 10 percent rating for bilateral plantar fasciitis with pes planus (bilateral foot plantar fasciitis with pes planus), effective July 9, 2011. The case was later transferred to the Montgomery, Alabama Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As to the Veteran's claims for higher ratings for his service-connected diabetes mellitus, hypertension, and erectile dysfunction, the Board observes that he was last afforded a VA general medical examination in January 2011. The diagnoses included diabetes mellitus, type 2, well controlled; hypertension; and erectile dysfunction of an unknown etiology. Since that time, in a March 2014 VA Form 9, the Veteran specifically stated that all of his service-connected disabilities, including his service-connected diabetes mellitus, hypertension, and erectile dysfunction, were much worse. He also stated that such disorders had impacted his life greatly and had continued to worsen in frequency and severity. Additionally, in a November 2017 statement, the Veteran's representative indicated that if the Veteran's claims were not granted, he should be afforded new VA examinations. The Board notes that the Veteran has not been afforded VA examinations, as to his service-connected diabetes mellitus, hypertension, and erectile dysfunction, in over seven years. Additionally, the record clearly raises a question as to the current severity of those service-connected disabilities. As such, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo contemporaneous VA examinations. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Additionally, the Board observes that, as to the Veteran's claims for higher ratings for his service-connected right wrist disability, left wrist disability, right knee disability, left knee disability, and bilateral plantar fasciitis with pes planus, he was last afforded a VA general medical examination in January 2011 (the same VA general medical examination as noted above). The diagnoses included bilateral wrist strain; bilateral patellofemoral syndrome; bilateral plantar fasciitis; and a plantar calcaneal spur of the right foot. The U.S Court of Appeals for Veteran's Claims (Court) has issued decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopaedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." In light of these decisions, and as the findings pursuant to the January 2011 VA general medical examination report, noted above, are inadequate, the Board finds that new VA examinations should be provided addressing the Veteran's service-connected right wrist disability, left wrist disability, right knee disability, left knee disability, and bilateral plantar fasciitis with pes planus. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Snuffer, 10 Vet. App. at 400, 403. Further, the Board notes that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits of the underlying disability. Id at 454. The Board finds that the record raises the issue of a TDIU in this matter. In light of Rice and the remand of the claims for higher ratings for diabetes mellitus; hypertension; erectile dysfunction; a right wrist disability; a left wrist disability; a right knee disability; a left knee disability; and for bilateral plantar fasciitis with pes planus, the TDIU rating issue must be remanded because the claims are inextricably intertwined and must be considered together. Thus, a decision by the Board on the Veteran's TDIU rating claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). Finally, the Board finds that a remand is also required to request that the Veteran complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, or in order for the Veteran to provide the information requested on such form. Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to identify all medical providers who have treated him diabetes mellitus; hypertension; erectile dysfunction; right and left wrist problems; right and left knee problems; and for right and left foot problems, since February 2014. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Request the Veteran to provide a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, or a comparable statement as to the information requested on such form. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent, and severity of his service-connected diabetes mellitus; hypertension; erectile dysfunction; right wrist disability; left wrist disability; right knee disability; left knee disability; and bilateral plantar fasciitis with pes planus, and the impact of those condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Thereafter, schedule the Veteran for an appropriate VA examination to determine the extent and severity of his diabetes mellitus. The claims file must be reviewed by the examiner. All indicated tests must be conducted and all symptoms associated with the Veteran's diabetes mellitus must be described in detail. The examination report must include a complete rationale for all opinions expressed. 5. Schedule the Veteran for an appropriate VA examination to determine the extent and severity of his hypertension. The claims file must be reviewed by the examiner. All indicated tests must be conducted and all symptoms associated with the Veteran's hypertension must be described in detail. The examination report must include a complete rationale for all opinions expressed. 6. Schedule the Veteran for an appropriate VA examination to determine the extent and severity of his erectile dysfunction. The examiner must identify all impairment due to the service-connected disability 7. Schedule the Veteran for an appropriate VA examination to determine the extent and severity of his right wrist disability and left wrist disability. The claims file must be reviewed by the examiner. All indicated tests must be conducted, including x-ray, and all symptoms associated with the Veteran's service-connected right wrist disability and left wrist disability must be described in detail. Specifically, the examiner must identify any orthopedic and neurologic impairment found. The examiner should describe any pain, weakened movement, excess fatigability, instability of motion, and incoordination that is present. The examiner must also state whether the examination is taking place during a period of flare-ups. If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including the frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examination report must include a complete rationale for all opinions expressed. 8. Schedule the Veteran for a VA examination to determine the extent and severity of his right knee disability and left knee disability. The claims file must be reviewed by the examiner. All indicated tests must be conducted, including x-ray, and all symptoms associated with the Veteran's right knee disability and left knee disability must be described in detail. Specifically, the examiner must conduct a thorough orthopedic examination of the Veteran's right knee disability and left knee disability and provide diagnoses of any pathology found. In examining the right knee and left knee, full range of motion testing must be performed where possible. The joints involved must be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joints. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of motion, and incoordination that is present. The examiner must also state whether the examination is taking place during a period of flare-ups. If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including the frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examination report must include a complete rationale for all opinions expressed. 9. Schedule the Veteran for a VA examination to determine the extent and severity of his bilateral plantar fasciitis with pes planus. The entire claims file, to include all electronic files, must be reviewed by the examiner. All indicated tests must be conducted, including x-ray, and all symptoms associated with the Veteran's service-connected bilateral plantar fasciitis with pes planus must be described in detail. Specifically, the examiner must conduct a thorough orthopedic examination of the Veteran's service-connected right foot and left foot disabilities and provide diagnoses of any pathology found. The examiner must state whether the examination is taking place during a period of flare-ups. If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including the frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional functional loss during a flare-up or after repeated use over time. If the examiner cannot do so without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examination report must include a complete rationale for all opinions expressed. 10. Then readjudicate the issues on appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran 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). This claim 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). _________________________________________________ STEVEN D. REISS 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) (2017).