Citation Nr: 18140212 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-10 796 DATE: October 2, 2018 ORDER The appeal concerning the issue regarding entitlement to a disability rating greater than 10 percent for left knee degenerative joint disease is dismissed. The appeal concerning the issue regarding entitlement to a disability rating greater than 30 percent for chronic obstructive pulmonary disease (COPD) is dismissed. Service connection for a left foot disorder is granted. Service connection for a right foot disorder is granted. Service connection for restless leg syndrome is granted. REMANDED A total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, during the June 2018 Board hearing, the Veteran withdrew his appeal concerning the issues regarding entitlement to a disability rating greater than 10 percent for left knee degenerative joint disease and entitlement to a disability rating greater than 30 percent for COPD. 2. Resolving all doubt in his favor, the Veteran has current diagnoses of left foot disabilities which have been related to his service. 3. Resolving all doubt in his favor, the Veteran has current diagnoses of right foot disabilities which have been related to his service. 4. Resolving all doubt in his favor, the Veteran has a current diagnosis of restless leg syndrome which has been related to his service and, likely, has been continually present since that time. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal concerning the issues regarding entitlement to a disability rating greater than 10 percent for left knee degenerative joint disease and a disability rating greater than 30 percent for COPD have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for service connection for a left foot disorder are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 3. The criteria for service connection for a right foot disorder are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 4. The criteria for service connection for restless leg syndrome are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1957 to April 1958 and again from April 1983 to March 2000. He also had approximately 37 years of Reserve service with the National Guard. These matters come before the Board of Veterans’ Appeals (Board) from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in June 2018. A transcript of this proceeding has been associated with the claims file. Increased Rating Issues Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. During the June 2018 Board hearing, the Veteran indicated that he wished to withdraw his appeal concerning the issues regarding entitlement to a disability rating greater than 10 percent for left knee degenerative joint disease and a disability rating greater than 30 percent for COPD. Hence, there remain no allegations of errors of fact or law for appellate consideration for these issues. Accordingly, the Board does not have jurisdiction to review the appeal with regard to these issues and they are dismissed. Service Connection Issues Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for a bilateral foot disorders The Veteran contends that he began experiencing problems with his feet in service. Specifically, in his April 2015 substantive appeal and during the June 2018 Board hearing, the Veteran reported that he was given boots that were too small for his feet on active duty and experienced ingrown toenails that have required ongoing treatment. He was also treated for corns on his right big toe, painful callus plantar hallux, and a hard mass on the sole of his feet. The Veteran’s service treatment records confirm that he was treated for foot problems on several occasions during service. Specifically, the Veteran was treated for corns on his right foot big toe in April 1985, right foot pain in February 1986, left foot pain in April 1986, and a left foot ingrown toenail in May 1996 and November 1997. The Veteran submitted an initial claim for service connection for bilateral foot problems in March 2011. The earliest post-service medical evidence of foot problems is a May 2011 VA treatment record showing diminished circulation, absent/weak palpable pulse, and dry skin of the feet. Subsequent private treatment records dated in September 2014 show diagnoses of plantar fasciitis, onychomycosis, recalcitrant heel pain, calcaneal spurring, and hallux varus. In support of his claim, the Veteran submitted a July 2018 statement from Dr. M.M. Dr. M.M. wrote that the Veteran had pes cavus and ran four miles daily for 20 years in combat boors which adversely affected his feet. Dr. M.M. wrote that there were signs of arthritic changes in the Veteran’s feet and that the Veteran’s plantar fasciitis and arthritic changes of the feet are due to chronic in-service stress and strain of his feet. Upon review of the evidence, the Board finds that in affording the Veteran the benefit of the doubt, service connection for left and right foot disorders is warranted. As above, service treatment records show treatment for several bilateral foot issues in service. Furthermore, the Veteran contends that he began experiencing foot problems in service which have continued since service. Moreover, the record contains a medical opinion relating the Veteran’s bilateral foot disabilities to chronic in-service stress and strain of his feet. There is no contrary medical opinion of record. As such, the evidence supports a grant of service connection for bilateral foot disorders. 2. Service connection for restless leg syndrome The Veteran contends that he began experiencing problems with his legs in service. Specifically, in his April 2015 substantive appeal and during the June 2018 Board hearing, the Veteran reported that he was treated for leg problems during his active service and was even diagnosed with restless leg syndrome, neuropathy, and varicose veins. The Veteran’s service treatment records confirm that he was treated for leg pain on several occasions during service. Specifically, the Veteran was treated for numbness of the legs from March through May 1993, at which time it was noted that the Veteran may have restless leg syndrome. The Veteran was also treated for varicose veins of the left leg from October to December 1994. The Veteran submitted an initial claim for service connection for leg problems in March 2011. The earliest post-service medical evidence of leg problems is a June 2003 VA treatment record showing a diagnosis of restless leg syndrome. In support of his claim, the Veteran submitted statements from Dr. J.K.M. In a June 2018 statement, Dr. J.K.M. wrote that he had reviewed the Veteran’s service treatment records which showed potential restless leg syndrome as early as 1993. Dr. J.K.M. diagnosed peripheral neuropathy as well as restless leg syndrome. With regard to the restless leg syndrome, Dr. J.K.M. wrote that this was both secondary to peripheral neuropathy and was also related to the Veteran’s military service. In a July 2018 statement, Dr. J.K.M. reiterated that the Veteran’s restless leg syndrome goes back to the time he was in the military. Upon review of the evidence, the Board finds that in affording the Veteran the benefit of the doubt, service connection for restless leg syndrome is warranted. As above, service treatment records show complaints of numbness of the lower extremities and possible restless leg syndrome and post-service treatment records show a diagnosis of restless leg syndrome as early as June 2003. Furthermore, the Veteran contends that he began experiencing leg problems in service which have continued since service. Moreover, the record contains a medical opinion relating the Veteran’s restless leg syndrome to his military service. There is no contrary medical opinion of record. As such, the evidence supports a grant of service connection for restless leg syndrome. REASONS FOR REMAND 1. A TDIU is remanded. With regard to the TDIU issue, the Veteran previously worked as a manager of maintenance staff until July 2009 but had to quit, allegedly due to his service-connected COPD and lumbar spine disabilities as well as nonservice-connected problems with his feet and legs. The Veteran attempted working again as a manager of maintenance staff for approximately nine months but quit again in February 2011, also allegedly due to his service-connected COPD and lumbar spine disabilities as well as nonservice-connected problems with his feet and legs. A TDIU may be assigned where the combined rating for the veteran’s service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran’s service-connected disabilities presently include COPD (30 percent disabling); bilateral hearing loss (20 percent disabling); lumbar degenerative joint disease (20 percent disabling); left knee degenerative joint disease (10 percent disabling); gastroesophageal reflux disease (10 percent disabling); left wrist disability (10 percent disabling); radiculopathy of the right lower extremity (10 percent disabling); hypertension (noncompensably disabling); and impotence (noncompensably disabling). While a combined disability evaluation of 80 percent is in effect, the Veteran does not have at least one disability ratable at 40 percent or more. Therefore, he does not currently meet the minimum schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). However, the Board has granted service connection for bilateral foot disorders and restless leg syndrome and such awards may make the Veteran eligible for a TDIU. Furthermore, while the Veteran does not currently meet the schedular criteria for a TDIU, there is evidence that calls into question the Veteran’s ability to secure or follow substantially gainful employment due to his service-connected lumbar spine disability. Significantly, no medical opinion regarding the combined effect of the Veteran’s service-connected disabilities on his ability to maintain employment has been obtained. Such should be accomplished on remand. Moreover, if the Veteran does not qualify for a TDIU pursuant to 38 C.F.R. § 4.16(a) after assigning disability ratings for the newly service-connected bilateral foot and restless leg syndrome disorders, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). With respect to assignment of a TDIU under the provisions of 38 C.F.R. § 4.16(b), the Board finds that the Veteran’s claim should be submitted to the Director of Compensation Service for a determination as to whether a TDIU should be awarded on an extra-schedular rating basis. The Board finds the award of Social Security disability benefits discussed above is plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disorders. Accordingly, the Board finds that the claim should be submitted to the Director of Compensation and Pension for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b). Finally, the Board notes that there are likely outstanding VA treatment records as the most recent VA medical records in the claims file are dated in January 2015. Therefore, all outstanding VA treatment records should be obtained on remand. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records dated from January 2015 to the present. 2. Schedule the Veteran for a VA general examination to determine whether the Veteran’s service-connected disabilities preclude substantially gainful employment. The examiner must elicit from the Veteran and record for clinical purposes, a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran’s statements, the examiner must provide an opinion as to whether the Veteran’s service-connected disabilities, considered collectively, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities or age. The examiner is advised that service connection has been granted for the Veteran’s COPD (30 percent disabling); bilateral hearing loss (20 percent disabling); lumbar degenerative joint disease (20 percent disabling); left knee degenerative joint disease (10 percent disabling); gastroesophageal reflux disease (10 percent disabling); left wrist disability (10 percent disabling); radiculopathy of the right lower extremity (10 percent disabling); hypertension (noncompensably disabling); impotence (noncompensably disabling); and newly service-connected bilateral foot and restless leg syndrome disabilities. A complete rationale for any opinion must be provided. 3. Assign disability ratings for the newly service-connected bilateral foot and restless leg syndrome disabilities. Then, readjudicate the appeal. 4. If the Veteran does not qualify for a TDIU pursuant to 38 C.F.R. § 4.16(a) after assigning disability ratings for the newly service-connected bilateral foot and restless leg syndrome disabilities, refer this case to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b). 5. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD April Maddox, Counsel