Citation Nr: 18143836 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 05-28 675 DATE: October 22, 2018 REFERRED Entitlement to service connection for hallux valgus and calcaneal spurs, to include as secondary to his service-connected bilateral pes planus is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REMANDED Entitlement to an initial evaluation in excess of 10 percent from November 26, 2003, to January 2, 2012, in excess of 30 percent from January 3, 2012, to July 17, 2014, in excess of 50 percent from July 18, 2014, to October 8, 2017, and in excess of 30 percent from October 9, 2017, for bilateral pes planus is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 23, 2015, is remanded. REASONS FOR REFERRAL In the September 2018 Written Brief Presentation, the accredited representative advanced contentions which may be reasonably construed as seeking service connection for hallux valgus and calcaneal spurs, to include as secondary to the service-connected bilateral pes planus. These issues have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). REASONS FOR REMAND The Veteran served on active duty from August 1968 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). In July 2012, the RO increased the rating for bilateral pes planus to 30 percent disabling effective January 3, 2012. In February 2015, the RO awarded an increased 50 percent disabling rating effective July 18, 2014. In February 2018, the RO decreased the rating to 30 percent effective October 9, 2017. The issue remains on appeal and has been recharacterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). The matters were most recently before the Board in June 2017 and remanded for further development. In September 2015, the RO denied service connection for bilateral elbow tendonitis and erectile dysfunction. The Veteran disagreed with the denials and a statement of the case was issued in July 2016. The Veteran perfected his appeal of the matters in September 2016; however, they are still undergoing development. Consequently, the matters are not ripe for appellate disposition and have not been certified to the Board. Thus, the Board does not currently have jurisdiction over those issues. The Veteran has also appealed the initial rating and effective date assigned for loss of teeth numbered 14, 18, and 19 and a statement of the case has issued; however, to date the Veteran has not perfected an appeal of those issues. See November 2017 rating decision and April 2018 statement of the case. However, the appeal period has not expired. Therefore, the Board also does not have jurisdiction over these matters. Entitlement to a higher initial evaluation for bilateral pes planus and TDIU are remanded. The Veteran’s representative has argued that the most recent VA examination conducted in 2017 was inadequate for reasons to include the examiner’s failure to address the Veteran’s symptomatology during flare-ups and following repetitive use over time. The representative noted the examiner found that there was pain, weakness, fatigability, and incoordination that significantly limited functional ability during flare-ups or when the feet were use repeatedly over a period of time, but stated that she was unable to describe the functional loss without “resorting to mere speculation.” According to Sharp v. Shulkin, 29 Vet. App. 26 (2017), VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. In this case, the December 2017 VA examination report does not provide the necessary information regarding flare-ups, as specified above. Moreover, the examiner’s reason for not providing an estimate of additional functional loss during flare-ups is too general in nature to comply with Sharp (as indicated by the medical opinion found to be deficient in that decision). In this regard, although the examination was not performed during a flare-up, it is not apparent why the examiner could not estimate additional functional loss based on the Veteran’s statements describing the flare-ups, or why the available information in the file was not sufficient to permit such an estimate. A new VA examination must be provided that complies with Sharp. Entitlement to a TDIU requires an accurate assessment of the impairment associated with all the Veteran’s service-connected disabilities. Given these facts, the Board finds that the issue of the Veteran’s entitlement to a TDIU for the period prior to February 23, 2015, is inextricably intertwined with both the issue of entitlement to a higher initial evaluation for bilateral pes planus and the issues of service connection for hallux valgus and calcaneal spur (claimed as secondary to bilateral pes planus) referred to the AOJ for adjudication in the referral section of this decision above. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Ensure the Veteran is scheduled for a VA examination relating to his claim for a higher initial rating for bilateral pes planus. The contents of the virtual record, to include a complete copy of this Remand, must be made available to the examiner, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the requesting clinician prior to the completion of his or her report) and all clinical findings needed to evaluate the bilateral foot disabilities should be reported in detail. A) Flare-ups: the examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional functional impairment during a flare-up. If the examiner is unable to provide an estimate of additional functional loss during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. B) The examiner should discuss the effect of bilateral pes planus disability on his occupational functioning and daily activities. C) The examiner should also state whether bilateral hallux valgus and calcaneal spurs are related to and/or a progression of the bilateral pes planus. If not, the examiner must specifically delineate which symptoms are attributable to the bilateral pes planus and which are attributable to nonservice-connected foot disabilities found upon examination, e.g. hallux valgus, calcaneal spurs, and plantar fasciitis. Additionally, regarding the left foot, the examiner should specifically delineate which symptoms are attributable to the bilateral pes planus and which are attributable to the service-connected stress fracture of the left foot, if possible. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 2. The examination report must be reviewed to ensure it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 3. Adjudicate the referred and intertwined issues of service connection for hallux valgus and calcaneal spur. The Veteran and his accredited representative should be informed in writing of the resulting decision and associated appellate rights. The issues are not on appeal unless there is both a notice of disagreement (NOD) and a substantive appeal as to each issue referred above to the AOJ for adjudication. 4. Then readjudicate the remaining issues on appeal. If upon completion of the above action the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel