Citation Nr: 1827409 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 12-01 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right foot nerve damage, to include as secondary to service-connected residuals of a neuroma of the right foot 2. Entitlement to service connection for a low back disorder, to include as secondary to service-connected residuals of a neuroma of the right foot. 3. Entitlement to an evaluation in excess of 10 percent for residuals of a neuroma of the right foot. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Adam Neidenberg, Attorney ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, and a December 2011 rating decision by the RO in Atlanta, Georgia. In March 2013, the Veteran presented testimony at a hearing before a Veterans Law Judge who is no longer employed by the Board. In an October 2017 letter, the Board offered the Veteran the opportunity to testify at a hearing before another Veterans Law Judge who would ultimately decide the appeal. See 38 U.S.C. § 7102 (2012); 38 C.F.R. § 20.707 (2017). To date, no response has been received. In November 2014, the Board remanded the issues of entitlement to service connection for right foot nerve damage, a psychiatric disorder, and a low back disorder; entitlement to an increased evaluation for a right foot disability; and entitlement to TDIU for further development. The case has since been returned to the Board for appellate review. The Board notes that the Veteran's appeal originally included the issue of entitlement to service connection for a psychiatric disorder. However, in a January 2016 rating decision, the RO granted service connection for PTSD with major depressive disorder. The AOJ's grant of service connection for this issue constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, that matter is no longer on appeal, and no further consideration is necessary. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regarding the claim for service connection for a back disorder, the Veteran was afforded a VA examination in September 2015. The examiner opined that the Veteran's back disorder was less likely than not proximately due to or a result of her service-connected condition. However, the examiner did not adequately address the whether the Veteran's back disorder was aggravated by her service-connected right foot disability. Therefore, an additional VA medical opinion is necessary. The Board does acknowledge that the Veteran was afforded an additional VA examination in June 2017. However, the examiner did not provide a medical opinion regarding the nature and etiology of the Veteran's back disorder. Regarding the claim for service connection for a nerve disorder of the right foot, the Veteran was afforded a VA examination in September 2015. The examiner opined that the claimed condition claimed was less likely than not proximately due to or the result of her service-connected condition. However, the examiner did not adequately address whether the Veteran's nerve disorder was aggravated by her service-connected right foot disorder. Therefore, an additional VA medical opinion is necessary. Regarding the issue of entitlement to an increased evaluation for the neuroma of the right foot, the Veteran was afforded VA examinations in September 2015 and June 2017. Historically, the Veteran's service-connected right foot disability was evaluated under Diagnostic Code 5284 (for other foot disorders). Notably, VA's General Counsel has determined that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion. See VAOPGCPREC 9-98. Moreover, the Veteran has reported that her right foot disorder is manifested by limitation of motion. See, e.g., March 2010 statement in support of claim; September 2015 VA examination. However, the Board notes that the September 2015 and June 2017 VA examination reports do not include all of the findings required under Correia v. v. McDonald, 28 Vet. App. 158 (2016). Therefore, an additional VA examination is needed. Regarding the issue of entitlement to TDIU, the Board finds that additional development is necessary prior to adjudicating the claim. The Veteran is currently service-connected for PTSD with major depressive disorder, assigned a 70 percent evaluation, and residuals of a neuroma of the right foot, assigned a 10 percent evaluation. Her combined rating is 70 percent. In support of her claim, the Veteran submitted an October 2017 private vocational assessment from J.S. (initials used to protect privacy). J.S. opined that, given what appeared to be the permanency and chronicity of the Veteran's service-connected PTSD with major depressive disorder, the Veteran was unable to perform any significant gainful occupation since April 2010, to include a sedentary occupation. She also opined that the Veteran's right foot disorder further complicated her ability to work. However, it is unclear whether J.S. considered the Veteran's complete medical and employment history in rendering her opinion. In particular, J.S. did not address relevant evidence contained in the Veteran's VA vocational rehabilitation records. For example, in a January 2016 vocational rehabilitation medical prognosis and feasibility record, Dr. C.L. stated that the Veteran had several medical issues, but she was able to work with a few restrictions related to her back disorder. Similarly, in a March 2016 vocational rehabilitation medical prognosis and feasibility record, a mental health therapist, S.L., noted that the Veteran continued to be compliant with her mental health treatment and that she was able to work 40 hours or more per week with no restrictions. The record also contains several conflicting statements regarding the Veteran's employability. For example, in the October 2017 private vocational assessment, J.S. stated that the Veteran's employment through the VA vocational rehabilitation program was terminated in September 2017 because she missed approximately 50 percent of her assigned hours due to her service-connected disabilities. However, the Veteran's VA vocational rehabilitation records noted that she missed work, at least in part, as a result of disorders that are not currently service-connected, to include a back disorder, ankle disorder, migraine headaches, and asthma. See, e.g., May 2016 and August 2016 VA comprehensive vocational evaluations. The Veteran's VA vocational rehabilitation records also note that she was inconsistent in her report of limitations. In addition, in a May 2016 vocational rehabilitation record, the Veteran reported that she was offered a job developing websites for local companies, but did not take the position because she was afraid of losing her VA benefits. The Board notes that the Veteran has been afforded several VA examinations. However, the evidence of record does not adequately address the combined impact of her service-connected disabilities and any resulting impairment. Therefore, the Board finds that a VA examination is necessary. The Board further finds that the issue of entitlement to TDIU is inextricably intertwined with the other issues being remanded. Lastly, the Board notes that additional evidence has been associated with the claims file since the most recent supplemental statement of the case. On remand, the AOJ will have the opportunity to review such evidence in the first instance. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for her right foot and back that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's low back disorder and nerve disorder of the right foot. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. He or she should specifically consider the September 2015 and June 2017 VA examination reports. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify all current low back and right foot nerve disorders. For each diagnosis identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder was caused by or aggravated by her service-connected right foot disorder. In so doing, the examiner should consider the severity of the Veteran's service-connected neuroma of the right foot and any resulting gait impairment. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After obtaining any additional records, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of her service-connected residuals of a neuroma of the right foot. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the disability. In particular, he or she should address whether the Veteran has moderate, moderately severe, or severe residuals of a neuroma of the right foot. The examiner should also provide the range of motion in degrees for both feet. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. Further, the VA examiner should comment as to whether ranges of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examinations conducted during the appeal period. See, e.g., September 2015 and June 2017 VA examinations. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. In addition, the examiner should identify any other symptoms or manifestations attributable to the Veteran's service-connected neuroma of the right foot. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the foregoing development, the AOJ should schedule the Veteran for a VA examination to determine the combined effects of her service-connected disabilities and any resulting impairment. The examiner should address how the Veteran's service-connected disabilities alone result in functional impairment and comment on the Veteran's ability to function in an occupational environment. If possible, he or she should also indicate if there is any form of employment that the Veteran could perform, and if so, what type (such as sedentary in nature or physical labor). A written copy of the report should be associated with the electronic claims folder. 5. The AOJ should review the examination reports to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 6. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claims should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and her representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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 (2012). _________________________________________________ J.W. ZISSIMOS 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).