Citation Nr: 1807971 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-23 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral pes planus, to include as secondary to bilateral leg stress fractures. 2. Entitlement to a disability rating in excess of 10 percent for a left leg stress fracture. 3. Entitlement to a disability rating in excess of 10 percent for a right leg stress fracture. 4. Entitlement to a compensable disability rating for a left eye disability. 5. Entitlement to a total disability rating based on unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Diaz-Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1986 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The record before the Board consists of electronic records in Virtual VA and the Veterans Benefits Management System (VBMS). REMAND Service Connection Claim The Veteran claims service connection for bilateral pes planus, to include as secondary to his service-connected bilateral stress fractures. In this regard, the Board notes the Veteran underwent a VA examination in May 2017 and the examiner provided medical opinions. Among the opinions provided, the examiner addressed the theory of direct and secondary service connection, and concluded that the Veteran's bilateral leg fractures did not cause his pes planus because the latter condition predated the stress fractures. However, the examiner failed to address the theory of aggravation as it relates to secondary service connection. As such, the issue must be remanded to obtain an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Increased Rating Claims Bilateral Knee Stress Fractures Regarding the Veteran's claims for increased ratings for his bilateral leg stress fractures, the Board notes he also underwent a VA examination of his knees and lower legs in May 2017. The examination tested for range of motion of the knees as well as muscle strength and stability of the knees. However, the examiner noted the Veteran's stress fractures did not affect the range of motion of the ankle and, therefore, the Veteran's ankles were not examined. This is contradictory to the evidence of record as his stress fractures occurred in the calcaneus bone of the ankle and the RO has rated the Veteran's leg conditions under Diagnostic Code 5271, which rates limitation of motion of the ankle. See Rating Dec., June 1992; see also VA Exam. Rep., October 2005 at 1. As such, these issues are remanded for a new examination which includes examinations of the Veteran's ankles. Eye Disability As for the Veteran's claim for a compensable rating for his left eye disability, he also underwent a VA examination in May 2017. The examination report indicates that no testing of the visual fields was conducted. However, the Veteran asserted he is unable to drive at night due to the spots the vitreous floaters cause in his sight, which also affect him during the day and require him to wear dark shade lenses in order to see. See Hr'g Tr., October 2017 at 19. Given that the Veteran's condition appears to affect his visual fields, the Board finds a remand is warranted to obtain an examination that includes visual fields testing. TDIU Regarding the Veteran's TDIU claim, the Board initially notes the Veteran does not currently meet the statutory threshold for a TDIU. However, this issue is inextricably intertwined with the other issues on appeal and, thus, must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). On remand all relevant ongoing medical records should be obtained. 38 U.S.C. § 5103A (c) (2012); 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). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include any more recent treatment records related to the claimed disability. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Refer the claims file to an examiner of sufficient expertise or experience to render the requested opinion on aggravation. After a thorough review of the record, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected bilateral leg disabilities aggravated his bilateral pes planus beyond its natural progression. In proffering the opinion, the examiner should keep in mind that aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale must be provided for any opinion or conclusion expressed. If the physician is unable to provide any requested opinions, he or she should explain why. If the physician cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information needed. 3. Afford the Veteran a new examination by an examiner of sufficient expertise or experience to determine the current severity of the Veteran's bilateral leg conditions. Specifically, the examiner must complete a disability benefits questionnaire (DBQ) for ankle conditions, as the stress fractures the Veteran suffered in service involved the calcaneus bone of the ankle. To the extent it is reasonably possible, the examination should be scheduled during a flare-up or worsening of the Veteran's leg pain. The electronic records should be made available to the examiner for review before the examination. 4. Afford the Veteran a new examination by an optometrist or ophthalmologist to assess the current severity of the Veteran's left eye disability. Specifically, the examiner is directed to perform visual fields testing and to discuss the Veteran's reports of seeing spots, having to wear dark lenses during the day, and being unable to drive at night. The electronic records should be made available to the examiner for review before the examination. 5. Then, readjudicate the issues on appeal and determine whether the Veteran is entitled to a TDIU. If the benefits sought on appeal are not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).