Citation Nr: 18151935 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 17-03 413 DATE: November 20, 2018 REMANDED Whether new and material evidence has been received by VA sufficient to reopen a previously-denied claim to establish service connection for a low back disability is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD) is remanded. Entitlement to an evaluation in excess of 50 percent for service-connected bilateral pes planus with plantar fasciitis, pes valgus, heel spurs, and arthritis of the right foot (hereinafter, disabilities of the feet) is remanded. Entitlement to an evaluation in excess of 50 percent for a service-connected sleep disorder is remanded. Entitlement to an effective date prior to July 16, 2014, for the assignment of a 40 percent evaluation for the Veteran’s service-connected foot disabilities. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1978 to April 1987. He also has more than seven months of inactive service of an unspecified nature. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from the May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Characterization of an issue on appeal In October 2014, the Veteran contacted the Agency of Original jurisdiction via telephone and reported that he was diagnosed with PTSD at a VA facility, and the AOJ interpreted this as a claim to establish service connection for this disability. However, after sending the Veteran a development letter in connection with this claim, he clarified in December 2014 that he wished to file a claim to establish service connection for anxiety disorder rather than PTSD. Additionally, the Board notes that the evidence reflects various other psychiatric diagnoses. In light of above, this issue has been recharacterized as stated on the title page to better reflect the Veteran’s intentions and psychiatric diagnoses of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Issue not on appeal In April 2016, the Veteran submitted a Notice of Disagreement which challenged the effective date assigned by the AOJ for the Veteran’s service-connected sleep disorder in the May 2015 rating decision. While noting this assertion, the Board observes that the Veteran’s claim for an increased evaluation was denied by the AOJ in this rating decision, and thus, no effective date was assigned for this disability at that time. As such, there is no controversy to be put into appellate status regarding an effective date assigned for this disability. 1. Whether new and material evidence has been received by VA sufficient to reopen a previously-denied claim to establish service connection for a low back disability is remanded. 2. Entitlement to service connection for erectile dysfunction is remanded. 3. Entitlement to service connection for an acquired psychiatric disability other than PTSD is remanded. 4. Entitlement to an evaluation in excess of 50 percent for service-connected disabilities of the feet is remanded. 5. Entitlement to an evaluation in excess of 50 percent for a service-connected sleep disorder is remanded. 6. Entitlement to an effective date prior to July 16, 2014, for the assignment of a 40 percent evaluation for the Veteran’s service-connected foot disabilities. 7. Entitlement to a TDIU is remanded. While further delay is regrettable, after review of the record, the Board concludes that additional evidentiary and procedural development is necessary prior to the Board’s readjudication of the issues on appeal. Initially, in February 2018, the Veteran’s private attorney submitted an appellate brief, additional medical evidence, and waiver of AOJ initial review of such. Unfortunately, it appears that the medical evidence was submitted on a compact disc (CD), and while the Veteran’s file includes a scanned picture of this CD, the information purportedly contained therein is not reviewable by the Board. In the brief accompanying this evidence, the Veteran’s private attorney provides a summary which makes it clear that the evidence is potentially pertinent to all of the issues on appeal. As such, readjudication of these issues by the Board would be premature. In light of above, the Board concludes that the Veteran’s appeal must be remanded to ensure that this reasonably identified and pertinent evidence can be added to the Veteran’s file. Additionally, the Board concludes that the May 2015 VA foot examination is inadequate for the purpose of readjudicating the issue seeking an increased evaluation for the Veteran’s service-connected foot disabilities. Specifically, while the examination notes that the Veteran has neuropathy of the lower extremities that impacts his ambulation and experiences frequent flare-ups of foot symptoms, the report does not differentiate between the symptoms associated with his service-connected connected foot disabilities from those secondary to his nonservice-connected disabilities, and the functional limitation during flare-ups is not quantified. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); Sharp v. Shulkin, 29 Vet. App 26, 34 (2017). As such, the Veteran should be provided a contemporaneous VA foot examination which is adequate under the controlling laws. Finally, to ensure that the record is complete, updated VA and private treatment records should be sought, obtained, and associated with the file. The matters are REMANDED for the following actions: 1. The AOJ must take all reasonable steps necessary to ensure that the contents CD submitted by the Veteran’s private in February 2018 are associated with the file. *The Board is particularly interested in the private opinions and evaluations alluded to in the February 2018 brief from the Veteran’s private attorney. If these records cannot be retrieved from the CD, the Veteran and his private attorney should be contacted and requested to submit this evidence in hard copy form to be associated with the file. 2. The AOJ must obtain and associate with the file all updated records of VA treatment from the VA Medical Center in Fayetteville, North Carolina, and all associated facilities, dated after December 5, 2014. 3. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated him for any disability subject the issues remanded by the Board. After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The Veteran and his private attorney must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate his service-connected foot disabilities. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency and severity of the manifestations of the Veteran’s service-connected foot disabilities (bilateral pes planus, plantar fasciitis, pes valgus, heel spurs, and arthritis of the right foot). *To the extent possible, it would be helpful to schedule the Veteran for a VA examination during a flare-up of his service-connected foot disabilities. *In addition to the information requested by the standard DBQ relating to disabilities of the feet, the examiner must specifically address the following: - Provide findings quantifying the additional limitation of foot symptoms during a flare-up, currently and restrospectively. In doing so, please review the prior VA examination report (May 2015), and based on the information therein, provide the requested findings during the pendency of the appeal. - To the extent possible, differentiate between the symptoms associated with the Veteran’s service-connected foot disabilities (bilateral pes planus, plantar fasciitis, pes valgus, heel spurs, and arthritis of the right foot) and his nonservice-connected neuropathy of the lower extremities. If the examiner cannot provide any requested opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must undertake any additional development necessary to readjudicate the issues on appeal, to include scheduling the Veteran for additional VA examination(s). *The Board observes that the need to complete the above remand directive is partly dependent on the information contained on the CD submitted by the Veteran’s private attorney in February 2018. 6. Thereafter, the AOJ must readjudicate the issues remaining on appeal. If any benefit is not granted to the fullest extent, the Veteran and his private attorney must be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel