Citation Nr: 19190810 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 15-39 000A DATE: December 3, 2019 REMANDED Entitlement to service connection for bilateral shoulder disability is remanded. Entitlement to service connection for right foot disability, to include as secondary to service-connected disability, is remanded. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the thoracolumbar spine is remanded. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the left knee is remanded. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the right knee is remanded. Entitlement to an initial rating higher than 10 percent for left foot hallux valgus with left big toe degenerative joint disease is remanded. Entitlement to an initial compensable rating for hammertoes of the left foot is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1977 to July 1980. These matters come before the Board of Veterans’ Appeals (Board) from June 2013 and June 2015 rating decisions. In an October 2015 decision, a Decision Review Officer (DRO) rated the Veteran’s service-connected left foot hallux valgus and left big toe degenerative joint disease together and assigned a single 10 percent disability rating, from April 26, 2012. As for characterization of the issues on appeal, the evidence reflects that the Veteran has been unemployed during the claim period and that his service-connected disabilities have contributed to his inability to work. Entitlement to a TDIU may be an element of an appeal for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (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); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Given the evidence of current disabilities, the Veteran’s claim for the highest ratings possible for his service-connected back, bilateral knee, and left foot disabilities, and the evidence of unemployability, the issue of entitlement to a TDIU is properly before the Board under Roberson and Rice and the Board has expanded the appeal to include this issue. 1. Entitlement to service connection for bilateral shoulder disability and entitlement to service connection for right foot disability (to include as secondary to service-connected disability) are remanded. The Veteran’s medical records reflect that he experienced a left shoulder injury prior to service, but that no shoulder abnormalities were noted during his May 1977 entrance examination. His service treatment records indicate that he experienced left shoulder problems during service and that he also sustained shoulder injuries after service when he was assaulted. With regard to his claimed right foot disability, his service treatment records indicate that he experienced right foot problems during service. Also, an August 2008 VA podiatry consultation note reflects that he had been experiencing foot pain for the previous 2 years following a back injury. Overall, the evidence suggests that the Veteran’s claimed shoulder and right foot disabilities may be related to service and that that his claimed right foot disability may be associated with service-connected disability. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for bilateral shoulder disability and right foot disability because no VA examiner has determined the nature of these claimed disabilities or opined whether any such disabilities are related to service or are caused or aggravated by service-connected disability. Therefore, appropriate examinations should be conducted upon remand. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, in June 2015, the Veteran submitted records of treatment for bilateral foot disability from Skagit Regional Clinics. These records suggest that there are additional treatment records from this facility that have not been obtained. A remand is required to allow VA to obtain authorization and request these outstanding relevant private treatment records. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Puget Sound Health Care System (dated to September 2015) and the Manila Vista electronic records system (dated to July 2015). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the thoracolumbar spine, entitlement to an initial rating higher than 10 percent for degenerative joint disease of the left knee, entitlement to an initial rating higher than 10 percent for degenerative joint disease of the right knee, entitlement to an initial rating higher than 10 percent for left foot hallux valgus with left big toe degenerative joint disease, and entitlement to an initial compensable rating for hammertoes of the left foot are remanded. The evidence reflects that the Veteran’s service-connected back disability, bilateral knee disability, and left foot disabilities may have worsened since he was last examined by VA in November 2012. For instance, he submitted back, knee, and foot Disability Benefits Questionnaires (DBQs) in June 2015 and December 2016 which were completed by a private physician. These DBQs reflect back, knee, and foot symptomatology which is significantly more severe than that which was documented during the November 2012 examinations. Moreover, the back and knee DBQs indicate that the Veteran experienced ankylosis of the thoracolumbar spine and the knees, but he retained the ability to move his back and knees and it is otherwise unclear whether the reports of ankylosis are accurate. Also, the foot DBQ does not contain all the information that is necessary to properly rate the Veteran’s service-connected left foot disabilities. In light of the above, the Veteran should be provided an opportunity to report for new VA examinations to ascertain the current severity and manifestations of his service-connected back, bilateral knee, and left foot disabilities. Also, all outstanding treatment records should be secured upon remand. 3. Entitlement to a TDIU due to service-connected disabilities is remanded. Since a decision on the remanded service connection and higher rating matters could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. The issue of entitlement to a TDIU should be adjudicated in the first instance by the agency of original jurisdiction (AOJ), to include appropriate notification. The Veteran should also be given an opportunity to submit a formal application for a TDIU (VA Form 21-8940). Also, all outstanding treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Send the Veteran a letter that provides him with notice as to the information and evidence that is required to substantiate his claim for a TDIU and ask the Veteran to complete a formal application for a TDIU (VA Form 21-8940) and to report his education and employment history and earnings. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for shoulder disability, foot disability, back disability, knee disability, and lower extremity neurological disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for shoulder disability, foot disability, back disability, knee disability, and lower extremity neurological disability from Skagit Regional Clinics and any other sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s outstanding VA treatment records from the VA Puget Sound Health Care System for the period since September 2015; the Manila Vista electronic records system for the period since July 2015; and all such relevant records from any other sufficiently identified VA facility. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current shoulder disability. The examiner must opine whether any shoulder disability experienced by the Veteran since approximately May 2014 at least as likely as not (1) began during service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed arthritis); or (3) is related to an in-service injury or disease, including the shoulder problems documented in his service treatment records. The examiner is advised that although the Veteran experienced a left shoulder injury prior to service, he was presumed sound at service entrance. The examiner must provide reasons for each opinion given. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left foot disabilities and to determine the nature and etiology of any current right foot disability. The examiner should provide a full description of the Veteran’s foot disabilities and report all signs and symptoms necessary for evaluating his service-connected left foot disabilities under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. The examiner must also specifically opine whether any right foot disability experienced by the Veteran since approximately May 2014 at least as likely as not (1) began during service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed arthritis); (3) is related to an in-service injury or disease, including the right foot problems documented in his service treatment records; (4) is caused by service-connected disability(ies) (including, but not limited to, service-connected back and left foot disabilities); OR (5) is aggravated by service-connected disability(ies) (including, but not limited to, service-connected back and left foot disabilities). The examiner must provide reasons for each opinion given. 6. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability and any associated lower extremity neurological disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of the thoracolumbar spine. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. The examiner must provide reasons for any opinion given. 7. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the left and right knee. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. (Continued on the next page)   The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.