Citation Nr: 18145436 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 07-34 964 DATE: October 29, 2018 REMANDED 1. Entitlement to service connection for a left foot disability is remanded. 2. Entitlement to service connection for an ovarian cyst is remanded. 3. Entitlement to service connection for sinusitis is remanded. 4. Entitlement to service connection for arthritis is remanded. 5. Entitlement to service connection for a disability manifested by abdominal pain is remanded. 6. Entitlement to service connection for a disability manifested by chest pain is remanded. 7. Entitlement to service connection for a low back disability with radiculopathy of the lower extremities, to include on a secondary basis, is remanded. 8. Entitlement to service connection for sleep apnea is remanded. 9. Entitlement to service connection for neuroma of the left foot is remanded. 10. Entitlement to service connection for fibromyalgia is remanded. 11. Entitlement to service connection for diabetes mellitus is remanded. 12. Entitlement to service connection for bilateral carpal tunnel syndrome is remanded. 13. Entitlement to service connection for anemia is remanded. 14. Entitlement to an initial rating in excess of 10 percent before September 31, 2009, and an initial rating in excess 10 percent from January 1, 2010 (after an interim temporary 100 percent rating, under 38 C.F.R. § 4.30, from October 1, 2009 to December 31, 2009), for residuals of a left knee injury is remanded. 15. Entitlement to an initial rating in excess of 10 percent for lipoma of the right chest is remanded. 16. Entitlement to a rating in excess of 10 percent for hypertension with associated headaches is remanded. 17. Entitlement to a compensable rating prior to July 31, 2006, and a 20 percent rating from July 31, 2006, for chronic cystitis (formerly urinary tract infection (UTI) with painful urination) is remanded. 18. Entitlement to a rating in excess of 10 percent for hemorrhoids is remanded. 19. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty in the Army from October 1980 to May 1987 and in the Army Reserve from May 1987 to August 2004. This case is before the Board of Veterans’ Appeals (Board) on appeal from March 2005 and June 2008 Department of Veterans Affairs (VA) rating decisions. In part, the March 2005 Regional Office (RO) rating decision granted service connection for a left knee disability and lipoma of the right chest, assigning a 10 percent rating for each disability. In part, the June 2008 rating decision denied a compensable rating for hemorrhoids. A May 2016 Decision Review Officer decision granted a 10 percent rating for hemorrhoids and a 20 percent rating for chronic cystitis, both effective July 31, 2006. The TDIU issue has been added to the appeal because a TDIU claim is part of an increased rating claim when such claim is asserted by the Veteran or raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the record contains a June 2007 decision by the Social Security Administration, awarding disability benefits, and a November 2006 letter from the U.S. Office of Personnel Management (OPM), stating that her application for disability retirement had been approved. An April 2011 Board decision denied higher ratings for the left knee disability and hemorrhoids and reopened previously-denied claims of service connection for a left foot disability and ovarian cyst; the Board also remanded to the RO the left foot and ovarian cyst matters, as well as the remaining issues on appeal (except for the TDIU claim). The Veteran appealed the Board’s decision regarding the denial of higher ratings for the left knee disability and hemorrhoids to the United States Court of Appeals for Veterans Claims (CAVC). In an April 2012 Order, the CAVC granted an April 2012 Joint Motion for Partial Remand of the parties, thereby vacating the Board’s decision regarding the left knee disability and hemorrhoids matters and remanding the case to the Board for action consistent with the Joint Motion. In November 2012, the Board remanded the case to the RO for further development of the left knee disability and hemorrhoids claims. Subsequently, after further development, eight additional claims are on appeal, having arisen from a May 2016 Decision Review Officer decision at the RO. However, these matters have not been certified to the Board by the RO, so they will not be addressed herein. Such claims consist of the following: entitlement to an effective date prior to July 31, 2006 for the grant of a 20 percent rating for chronic cystitis; entitlement to an effective date prior to July 31, 2006 for the grant of a 10 percent rating for hemorrhoids; entitlement to an effective date prior to July 31, 2006 for the grant of service connection for bilateral pes planus with plantar fasciitis; entitlement to an initial rating in excess of 30 percent for bilateral pes planus with plantar fasciitis; entitlement to an effective date prior to July 6, 2004 for the grant of service connection for gastroenteritis with fundic gland polyp; entitlement to an initial rating in excess of 10 percent for gastroenteritis with fundic gland polyp; entitlement to an effective date prior to May 20, 2003 for the grant of service connection for left knee scars, status post surgery; and entitlement to an initial compensable rating for left knee scars, status post surgery. The Veteran’s attorney recently (in September 2018) requested under the Privacy Act copies of all evidence added to the record since the Board’s 2011 and 2012 remands, including all evidence considered in a May 2016 supplemental statement of the case (SSOC) and the letters of engagement and curriculum vitae (CV) of the VA examiners. This request was the same or similar to earlier requests dated in June 2017, August 2017, October 2017, November 2017, and May 2018 from the attorney. By letter dated August 30, 2017, the Board responded to his request, sending copies of the Veteran’s complete claims file up until that date. By letter dated June 19, 2018, the Board responded to his request, sending copies (on a compact disc) of the VA examinations of April 2016 and engagement letters and informing him that the Board does not gather or maintain the CV or other credentials of the medical examiner who conducted the VA examinations (and that such documents did not appear in the claims file). By letter dated September 25, 2018, the Board responded to his request, sending copies (on a compact disc) of the Veteran’s evidence from September 1, 2017 to the present. Therefore, the Board deems that there are no outstanding Privacy Act requests which require a reply that would delay further the consideration of the appealed matters. The issue of service connection for a disability characterized as “female problems” to include uterine fibroids was raised in various statements to include a statement dated in July 2006 (which cited to “fibroid cyst”) and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. 1.-13. Entitlement to service connection for a left foot disability, an ovarian cyst, sinusitis, arthritis, a disability manifested by abdominal pain, a disability manifested by chest pain, a low back disability with radiculopathy of the lower extremities including on a secondary basis, sleep apnea, neuroma of the left foot, fibromyalgia, diabetes mellitus, bilateral carpal tunnel syndrome, and anemia is remanded. 14.-18. Entitlement to an initial rating in excess of 10 percent before September 31, 2009, and an initial rating in excess 10 percent from January 1, 2010 (after an interim temporary 100 percent rating, under 38 C.F.R. § 4.30, from October 1, 2009 to December 31, 2009), for residuals of a left knee injury is remanded; entitlement to an initial rating in excess of 10 percent for lipoma of the right chest is remanded; Entitlement to a rating in excess of 10 percent for hypertension with associated headaches is remanded; Entitlement to a compensable rating prior to July 31, 2006, and a 20 percent rating from July 31, 2006, for chronic cystitis (formerly UTI with painful urination) is remanded; and Entitlement to a rating in excess of 10 percent for hemorrhoids is remanded. In its 2011 and 2012 remands, the Board requested the RO to obtain the Veteran’s OPM disability retirement records. Several requests were made to OPM, with the last request by letter in February 2016. It does not appear that any records were obtained, or that OPM responded indicating whether the records are available. Further, the Veteran was not properly notified, and in fact, in various correspondence (such as in March 2016) her attorney has noted that copies of OPM records have not been received. A remand is necessary to ensure compliance with the Board’s directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). As previously noted, the Veteran’s attorney has repeatedly requested the CV of the VA examiner who conducted the Veteran’s April 2014 examinations. Such CV is not of record, and he has not been furnished such information. See Nohr v. McDonald, 27 Vet. App. 124, 133-134 (2014). The Board finds that these claims need to be remanded for the RO to attempt to comply with the CAVC’s holding in Nohr by obtaining and providing to the Veteran and her attorney either a copy of her VA examiner’s CV or an explanation as to why it cannot be provided. See 38 U.S.C. § 5103A(b). Regarding the claim of service connection for a left foot disability including neuroma of the left foot, a VA examiner in April 2016 provided diagnoses of pes planus, hallux valgus, and plantar fasciitis, all of both feet. The report noted a history of surgery for hallux valgus (resection of the metatarsal head on the left in 2004) but provided no comments regarding Morton’s neuroma (medical records indicate she underwent removal of a neuroma in 2003). Service treatment records show treatment for chronic feet pain. Service connection has been established for pes planus and plantar fasciitis of both feet, based in part on the VA examiner’s medical opinion, but the opinion was ambiguous relative to hallux valgus (she concluded that there was no support in the medical literature for hallux valgus being secondary to pes planus and that the file lacked evidence of hallux valgus) and did not comment upon any neuroma or residuals thereof. A new examination would clarify the etiology of any left foot disabilities other than pes planus and plantar fasciitis. Regarding the claim of service connection for a low back disability with radiculopathy, a VA examiner in April 2016 provided an opinion addressing whether the Veteran’s current low back disability was directly related to her period of service. However, evidence in the file suggests that her back disability may, in part, be related to her service-connected left knee disability. For example, in a “buddy” statement dated in April 2005, another fellow serviceman indicated that the Veteran complained of problems with her lower back radiating down her left leg to her feet, stemming from a left knee injury in July 2001. Therefore, a medical opinion addressing the claim on a secondary basis is needed. Regarding the claim of an initial higher rating for a left knee disability, the Veteran underwent a VA examination in April 2016 which is not compliant with the CAVC decision in Correia v. McDonald, 28 Vet. App. (2016). Finally, it is noted that in July 2018, in response to the Board’s solicitation of a waiver of initial RO review of evidence (private and VA treatment records and medical articles), which were added to the claims file since the most recent SSOC in May 2016, the Veteran’s attorney requested that the claims file be returned to the RO for consideration of the new evidence. See 38 C.F.R. § 20.1304. Such evidence is relevant to most of the claims on appeal. 19. Entitlement to a TDIU is remanded. As was noted above, a TDIU claim is part of an increased rating claim when such claim is raised by the record, as is the case at present. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the RO should ensure that the claim has been developed properly, to include sending a VCAA letter and considering whether a further VA examination is necessary to decide the claim. The matters are REMANDED for the following: 1. Ensure VCAA compliance with the duties to notify assist regarding the claim for a TDIU rating, to include requesting the Veteran to complete a TDIU application. If she does so, send her a VCAA notice letter, determine whether a VA examination (to assess the nature and extent of functional impairment due to her service-connected disabilities and their impact on physical and sedentary types of employment, irrespective of age) is necessary; if so, arrange for one. 2. Secure for the record all documents pertaining to any award of benefits from the OPM, and specifically request a copy of any decision awarding any benefits and copies of the medical records relied thereupon. OPM should be informed that the Veteran has been approved for disability retirement under the Federal Employees Retirement System (FERS) for fibromyalgia. All efforts to secure the records should be documented. If the requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain them would be futile, notify the Veteran and her attorney in accordance with 38 C.F.R. § 3.159(e). 3. Contact the VA Medical Center where the Veteran’s April 2016 VA (C&P) examinations were conducted, and request a copy of the examiner’s curriculum vitae (CV) or an explanation as to why the CV cannot be provided. Thereafter, provide the Veteran and her attorney with a copy of the CV or the explanation as to why it cannot be provided. 4. Arrange for the Veteran to be examined by an appropriate physician (preferably an orthopedist) to determine the current nature and severity of her service-connected left knee disability and to determine the nature and etiology of her left foot disability and low back disability with radiculopathy of both lower extremities. The Veteran’s claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted. Regarding the left knee disability, the examination report must include results of range-of-motion studies, with notation of the degree of motion at which the Veteran experiences pain and any additional functional limitations due to such factors as weakness, fatigue, lack of endurance, and incoordination (all including after repetitive use and during flare-ups). To be compliant with Correia v. McDonald, 28 Vet. App. 158 (2016), the range-of-motion testing should, to the extent possible, reflect ranges of motion on active and passive motion as well as in weight-bearing and nonweight-bearing (or the examiner must explain why it is not medically possible or feasible to obtain such findings). The examiner is also asked to describe the functional impairments caused by the left knee disability and furnish an assessment as to the types of activities she would be able to participate in and those that would be precluded by the left knee disability, from a medical standpoint. Regarding the left foot disability, the examiner is asked to (a) identify (by diagnosis) each left foot disability other than pes planus and plantar fasciitis, to include whether there are any residuals of a neuroma, and (b) identify the likely etiology for the left foot disability entity at any time during the relevant appeal period (from May 2003), to include whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s currently diagnosed left foot disability (other than pes planus and plantar fasciitis) is related to her period of active duty from October 1980 to May 1987, or to any injury during a training period in the Reserves from May 1987 to August 2004. Regarding the low back disability with radiculopathy, the examiner is asked to opine as to whether it was at least as likely as not (a 50 percent or greater probability) that the Veteran’s currently diagnosed low back disability was either caused or aggravated by her service-connected left knee disability. (Aggravation is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus temporary flare-up of symptoms.) If the examiner finds that the Veteran’s low back disability has been aggravated by her service-connected left knee disability (even if the impact was minimal), she/he should indicate the degree of low back worsening resulting from the contribution to aggravation by the left knee disability, if medically ascertainable. If the low back disability is found to not have been caused by or aggravated by the left knee disability, the examiner should identify the etiological factors(s) considered more likely. All opinions must include complete rationale. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel