Citation Nr: 18149552
Decision Date: 11/09/18	Archive Date: 11/09/18

DOCKET NO. 16-27 409A
DATE:	November 9, 2018
REMANDED
The issues of entitlement to initial compensable ratings for left and right achilles tendonitis, and gastritis, and the issues of entitlement to service connection for a bilateral hand disability, and entitlement to a total disability rating based on individual unemployability (TDIU) are remanded for additional development.
REASONS FOR REMAND
The Veteran served on active duty from July 1994 to December 1994, November 2004 to May 2005, and June 2009 to July 2011, with service in Qatar, Afghanistan, Iraq, and Kuwait during Operation Iraqi Freedom.  
These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
1.  Entitlement to an initial compensable rating for left lower extremity achilles tendonitis.  
2.  Entitlement to an initial compensable rating for right lower extremity achilles tendonitis. 
3.  Entitlement to an initial compensable rating for gastritis. 
The Veteran’s statements in his notice of disagreement and substantive appeal suggest the severity of his disabilities may not be adequately demonstrated in the evidence currently of record.  Accordingly, the Veteran should be afforded a new VA examination to assess the current nature, extent, and severity of his service-connected bilateral ankle tendonitis and gastritis.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).
Moreover, it appears that records of some diagnostic testing and VA treatment records, specifically a March 2013 x-ray examination of the ankles, are not yet associated with the claims file.  Updated VA treatment records and private treatment records should also be requested on remand.  38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).
4.  Entitlement to service connection for a bilateral hand disability, claimed as joint pain in fingers, is remanded.
The Veteran contends that he has bilateral hand pain, specifically joint pain of his fingers, due to his duties in service.  The Board will remand this issue in light of the United States Court of Appeals for the Federal Circuit’s decision in Saunders v. Wilkie, 886 F.3d 1356 (2018).  Specifically, the Federal Circuit held that pain alone, when causing functional impairment, may constitute a “disability” for VA compensation purposes, even if the pain is not with an accompanying diagnosis.  Id. at 1368.  Accordingly, although the March 2013 VA examination may not have produced current diagnoses for the bilateral hands and fingers, pain impacting this area may be recognized as “disabilities” if such pain causes functional impairment.
On remand, the Agency of Original Jurisdiction (AOJ) must afford the Veteran a new VA examination and medical opinion for his bilateral hands and fingers.  In providing this examination and opinion, the VA examiner must provide an etiological opinion regarding pain and continuity of pain if such pain causes functional impairment, even if there are no underlying diagnoses.
5. Entitlement to a TDIU.  
The Veteran contends that his is entitled to a TDIU for the period he was unemployed due to his service-connected disabilities.  In a July 2013 VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, the Veteran reported that he last worked full time in July 2011 and that from November 2010 to July 2013 he lost 24 months of work due to illness.  However, he also stated that he was starting a new job in July 2013.  Clarification is needed regarding the Veteran’s employment history and earnings from July 2011, the date of service connection, to present in order to make a determination regarding his eligibility for TDIU.  Therefore, the Board finds that the Veteran should be afforded an additional opportunity to fill out and submit an updated VA Form 21-8940.  
Finally, the Board notes that the increased rating and service connection claims currently on appeal are part and parcel of the claim for a TDIU, and as such these claims are inextricably intertwined.  Accordingly, the issue of entitlement to a TDIU must be held in abeyance pending adjudication of the other claim currently on appeal.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). 
The matters are REMANDED for the following action:
1. The AOJ should also attempt to obtain any VA treatment records dating from April 2016 to the present pertaining to the Veteran’s bilateral ankle tendonitis, gastritis, and bilateral hand condition.  Attention is directed to VA outpatient treatment records that reference a March 2013 x-ray examination of the ankles.  Upon review of the record, the Board notes that the pulmonary function test has not been associated with the Veteran’s claims file.  If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such.
2. Additionally, ask the Veteran to provide the names and addresses of any private medical provider who has treated him for his conditions.  After securing any necessary releases, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. 
3. Send the Veteran a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion.  Notify the Veteran that the failure to provide the requested information may result in the denial of his claim.
4. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected bilateral achilles tendonitis.  Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss.  
(a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected achilles tendonitis, and how he characterizes the additional functional loss during a flare.
(b.) If the Veteran describes experiencing flare ups, identify the:
1.	frequency;
2.	duration; 
3.	precipitating factors; and
4.	alleviating factors.
(c.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion is additionally limited to X degrees (the measurement required for the next higher rating).  Please explain why or why not.
(d.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that repetitive use over time additionally limits motion to 45 degrees or less (for flexion) or 10 degrees or more (for extension).  Please explain why or why not.
(e.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up the disability is manifested by effusion and/or locking.
(f.) If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner).
(g.) If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.  
5. After completing the above actions, Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected gastritis.  The claims file should be made available to and reviewed by the examiner.  All indicated testing should be carried out and the results recited in the examination report.  
(a.) Based on review of the record, including the Veteran’s lay statements, the examiner should determine the current level of severity of the Veteran’s service-connected gastritis.  The examiner is asked to provide specific findings as to the nature and extent of the Veteran’s symptoms, as well as any nodular lesions, eroded or ulcerated areas, or hemorrhages.  If it is determined that there are not findings suggesting any of these symptoms, and that further extensive testing is not indicated, that should be set out in the examination report.
(b.) If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner).
(c.) If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.
6. After completing the above actions, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current bilateral hand disability.  The clinician should review the Veteran’s entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed.  If the Veteran only reports pain, but there is no diagnosable bilateral hand or finger condition, the clinician should indicate whether the Veteran’s hand or finger pain causes functional impairment. 
(a.) The clinician should then address whether it is at least as likely as not (50 percent probability or more) that any bilateral hand or finger condition including only hand or finger pain that causes functional impairment had its onset in, was caused by, or is otherwise related to service, to include duties in service.
(b.) In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim, April 11, 2012.
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(c.) For all opinions rendered, the clinician should provide a complete rationale.  If the clinician cannot provide the requested opinion without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so.
7.  After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal.  If the benefits sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if in order.
 
S. C. KREMBS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Bilstein, Associate Counsel