Citation Nr: 18145664 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-46 818 DATE: October 29, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to service connection for a lower jaw disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a skin disability over the right lower extremity is remanded. Entitlement to a rating in excess of 10 percent for left navicular fracture is remanded. Entitlement to a rating in excess of 10 percent for right navicular fracture is remanded. Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to an initial compensable rating for eczematous dermatitis over the bilateral hands and fingers is remanded. Entitlement to an initial compensable rating for radiculopathy of the right lower extremity is remanded. REASONS FOR REMAND The Veteran had active duty military service from August 1971 to August 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2012 and January 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the November 2012 rating decision, the RO, in pertinent part, continued the noncompensable ratings for right and left navicular fractures (wrist disabilities), continued the noncompensable rating for a lumbar spine disability, and denied service connection for right and left knee disabilities, lower jaw disability, and cysts over the right lower leg calf. In the January 2014 rating decision, the RO, in pertinent part, granted service connection for radiculopathy and assigned a noncompensable rating, granted service connection for eczematous dermatitis and assigned a noncompensable rating, increased the ratings for the lumbar spine, left wrist, and right wrist disabilities to 10 percent, respectively, all effective April 11, 2012. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in April 2017. A copy of the transcript has been reviewed and associated with the claims file. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, a December 2013 VA examination and September 2017 private physician statement indicate that the Veteran’s lumbar spine and wrist disabilities impact his ability to work. Accordingly, the issue of entitlement to a TDIU is before the Board. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (“[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU.”). 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). The Veteran indicated that he stopped working as a truck driver due to his lumbar spine and wrist disabilities. Furthermore, a statement from his previous employer indicated that he stopped working in 2010 due to his physical limitations. Lastly, a VA examination performed in December 2013 and a private physician statement dated in September 2017 indicated that his lumbar spine and wrist disabilities impacted his ability to work as a truck driver due to his inability to sit for long periods of time and shift. Accordingly, the Board finds that a TDIU claim has been raised by the record in this case. A review of the record shows that the Veteran has not been provided the specific notice required in response to a claim for a TDIU, to include a request to submit a VA Form 21-8940, and the originating agency has not adjudicated the TDIU issue. Therefore, the Board finds that further action is required of the originating agency before the Board decides the TDIU issue. Currently, the Veteran’s total combined disability rating is 40 percent. Thus, he does not meet the threshold requirements for a TDIU. See 38 C.F.R. § 4.16(a). Nevertheless, VA’s policy is to rate totally disabled all veterans who are unemployable. In such cases, the rating boards should submit the case to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Therefore, the claim must be referred to the Director, Compensation Service. 2. Entitlement to service connection for a lower jaw disability is remanded; 3. Entitlement to service connection for a skin disability over the right lower extremity is remanded; 4. Entitlement to service connection for a left knee disability is remanded. During the hearing in April 2017, the undersigned VLJ acknowledged that the Veteran had withdrawn the issues of entitlement to service connection for a lower jaw disability, skin disability over the right lower extremity, and a left knee disability. However, a subsequent decision by the Federal Circuit Court clarified what constitutes an effective verbal withdrawal of an appeal. Specifically, a verbal withdrawal of an appeal at a hearing is effective “only where it is (1) ‘explicit’; (2) ‘unambiguous’; and (3) ‘done with a full understanding of the consequences of such action on the part of the [veteran].’” See Acree v. O’Rourke, 891 F.3d 1009, 1012-1013 (Fed. Cir. 2018) (quoting DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)) (explaining that the Board must consider all three prongs of the DeLisio standard when determining whether a verbal withdrawal of a claim is effective). After a review of the evidence, including the April 2017 hearing transcript, the Board finds that there has been no withdrawal of the issues on appeal that was explicit, unambiguous, and done with a full understanding of the consequences of such action. In this regard, the Veteran did not verbally affirm this withdrawal at the hearing and there is no indication that he withdrew the claims with a full understanding of the consequences. Accordingly, the Board finds that a remand is warranted in order for the Veteran or his representative to submit an independent written statement confirming the Veteran’s withdrawal and indicating that he fully understands the consequences of the withdrawal. If a withdrawal is not received by the Veteran within sixty (60) days, the issues will remain in appellate status. Moreover, if the Veteran does not withdraw the issues, the Board finds that new VA examinations will be necessary for these issues given that the December 2013 examinations were insufficient. Specifically, there is evidence of a present left ankle disability and in-service injury with regard to the Veteran’s left ankle disability but the December 2013 examination did not provide an examination or etiological opinion for this disability. Furthermore, the December 2013 skin examination did not discuss the right calf lesion found in April 1989 when concluding that his seborrheic keratoses appearing lesion over right posteromedial calf was not related to service. Lastly, the December 2013 dental examiner indicated that the Veteran had bone loss which predated his in-service jaw surgery, but did not indicate whether this bone loss was due to trauma or osteomyelitis in service. 5. Entitlement to service connection for a right knee disability is remanded. The Veteran has been diagnosed with bilateral knee osteoarthritis and asserts that his right knee disability was incurred in service. Service-treatment records reveal the Veteran’s complaints of right knee pain on numerous occasions from April 1975 to August 1991. The Veteran testified at the hearing in April 2017 and indicated that he has continued to experience right knee pain since service, which has progressed over time. A VA examination was performed in December 2013, at which time the examiner indicated that his knee examination was normal and his knee pain was not related to service given that he has not sought medical treatment for knee pain in more than 10 years. After a review of the evidence, the Board finds that the December 2013 examination is insufficient to determine the present claim. In this regard, the examiner relied, in part, on diagnostics taken in 2004 to confirm that the Veteran did not have a present disability. Subsequent diagnostics confirmed that he does have bilateral knee arthritis. Furthermore, the examiner failed to take into account the Veteran’s complaints of continued right knee pain following service. Accordingly, the Board finds that a new VA examination is warranted. 6. Entitlement to a rating in excess of 10 percent for left navicular fracture is remanded; 7. Entitlement to a rating in excess of 10 percent for right navicular fracture is remanded; 8. Entitlement to an initial compensable rating for eczematous dermatitis over the bilateral hands and fingers is remanded. The Veteran was afforded VA examinations to assess the severity of his bilateral wrist and skin disabilities in December 2013. At the hearing in April 2017, he stated that his wrist and skin disabilities had worsened in severity since his last VA examination. Given this statement, along with the fact that the last examinations were conducted almost five years ago, the Board finds that the December 2013 examinations are too remote to be considered contemporaneous medical examinations sufficient to ascertain the current level of the Veteran’s wrist and skin disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a Veteran claims the disability is worse than originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). With regard to the Veteran’s service connected wrist disabilities, the Board notes that he is at the maximum 10 percent schedular rating under Diagnostic Code 5215; however, findings upon examination could possibly entitle him to a rating under a separate code, specifically Diagnostic Code 5214. Accordingly, the Board finds that a remand is warranted in order to afford the Veteran additional VA examinations to assess the current severity of his wrist and skin disabilities. 9. Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded; 10. Entitlement to an initial compensable rating for radiculopathy of the right lower extremity is remanded. A VA examination was performed in December 2013 for the Veteran’s claim of an increased rating for his service-connected lumbar spine disability. However, the Board finds that this examination is inadequate. In this regard, while active range of motion testing was performed, the examiner did not conduct and include findings for range of motion testing of his lumbar spine in passive motion, weight-bearing motion, and non-weight-bearing motion in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). Furthermore, during the examination the Veteran reported flare-ups of pain. However, the examiner did not estimate motion loss in terms of degrees during periods of flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, the Board finds that a new VA examination is warranted in order to assess the current severity of the Veteran’s lumbar spine disability and associated radiculopathy. Lastly, the record reflects that the Veteran is receiving disability benefits from the Social Security Administration (SSA). However, these records are not associated with the claims file. Furthermore, the Veteran indicated that he was treating with private and VA physicians at the hearing in April 2017. Accordingly, on remand, the Veteran’s SSA records and updated VA and private treatment records should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative in writing and ask the Veteran to submit an independent written statement confirming or denying a withdrawal of the appealed claims of service connection for left knee, lower jaw, and seborrheic keratoses of the right lower extremity/calf disabilities. In the letter it must be explained that if he confirms the withdrawal, he fully understands that he will no longer be able to continue his claim for entitlement to service connection for these disabilities and that any later claim will be subject to a later effective date rather than the claim date for the instant appeal. If the Veteran does not respond within sixty days (60), then proceed as though the claims of service connection for left knee, lower jaw, and seborrheic keratoses of the right lower extremity/calf disabilities remain on appeal. 2. Contact the SSA and request that it provide documentation of the Veteran’s award of disability benefits and copies of all records developed in association with the decision for incorporation into the record. 3. Obtain and associate with the claims file the Veteran’s updated VA treatment records from December 2016 to the present. 4. Send a letter to the Veteran and his representative requesting that he provide sufficient information, including medical provider’s name, location, and dates of treatment, and signed dated authorization(s), for all relevant updated private treatment relating to his lumbar spine, wrists, knees, skin, and lower jaw disabilities. All efforts to obtain records should be associated with the claims file and the Veteran and his representative should be provided notification if any of the listed records are unavailable pursuant to 38 C.F.R. § 3.159(e). 5. After completion of #1, #2, #3, and #4, schedule the Veteran for a VA examination to determine the nature and etiology of his right knee disability. (If a valid withdrawal of the left knee disability and/or jaw disability is not received, then these issues should also be covered on examination). The claims folder, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. The examiner is to identify all right knee disabilities found on examination and identified during the pendency of this claim (since April 2012), including right knee arthritis, and respond to the following: is it at least as likely as not (50 percent probability or more) that the Veteran’s right knee disability was incurred in and/or otherwise related to his period of active duty service? If the examiner is instructed that the left knee disability remains on appeal, then he or she should also identify the left knee disabilities found on examination and identified during the pendency of this claim (since April 2012), including left knee arthritis, and respond to the following: is it at least as likely as not that the Veteran’s left knee disability was incurred in and/or otherwise related to his period of active duty service? If the examiner is instructed that the lower jaw disability remains on appeal, then he or she should also identify the lower jaw disabilities found on examination and identified during the pendency of this claim (since April 2012), and respond to the following: is it at least as likely as not (50 percent probability or more) that the Veteran’s lower jaw disability was incurred in and/or otherwise related to his period of active duty service. With regard to the bone loss found during the December 2013 dental VA examination, is it at least as likely as not (50 percent probability or more), that this bone loss is due to trauma or osteomyelitis incurred in service? The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 6. After completion of #1, #2, #3, and #4, schedule the Veteran for a VA examination to determine the current severity of his service-connected eczematous dermatitis. (If a valid withdrawal of the seborrheic keratoses of the right lower extremity/calf is not received, then this issue should also be covered on examination). The claims folder, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. All pertinent symptomatology and findings must be reported in detail for the Veteran’s service-connected eczematous dermatitis. Any indicated tests and studies must be performed. The examiner must identify all areas of the Veteran’s body that are affected by his service-connected skin disability. The examiner must discuss what percentage of the Veteran’s body is affected by the service-connected skin disorder, including both the exposed areas only and the entire body. The examiner must review the record for prescribed treatment for the skin disability and indicate what treatment the Veteran has received, whether topical or systemic, and the length of time for which each treatment was prescribed since April 2012. If the examiner is instructed that the Veteran’s claim for service connection for seborrheic keratoses of the right lower extremity/calf remains on appeal, then he or she should also identify the skin disabilities over the lower extremity found on examination or identified during the pendency of this claim (April 2012), including seborrheic keratoses of the right lower extremity/calf, and respond to the following: is it at least as likely as not that the Veteran’s lower extremity skin disability was incurred in and/or otherwise related to his period of active duty service? The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 7. After completion of #1, #2, #3, and #4, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected lumbar spine disability. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. Flare-ups have been reported throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being the most confident The examiner should report and discuss the severity of the Veteran’s service-connected radiculopathy. The affected nerves should be identified and the impairment for radiculopathy should be characterized as mild, moderate, moderately severe, or severe incomplete paralysis or complete paralysis. The examiner should discuss the impact of his lumbar spine and radiculopathy disabilities on his ability to work. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 8. After completion of #1, #2, #3, and #4, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected right and left wrist disabilities. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. Flare-ups have been reported throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being the most confident The examiner should note the presence and severity of any wrist ankylosis pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5214. The examiner should discuss the impact of his right and left wrist disabilities on his ability to work. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 9. Provide the Veteran with notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that he supply the requisite information. 10. Thereafter, if the Veteran does not meet the schedular requirements under § 4.16(a), refer the claim for a TDIU to the Director, Compensation Service, and notify the Veteran of such action. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel