Citation Nr: 19158024 Decision Date: 07/26/19 Archive Date: 07/25/19 DOCKET NO. 12-28 423 DATE: July 26, 2019 ORDER Entitlement to service connection for residuals of heat stroke is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. REMANDED Entitlement to a rating in excess of 20 percent for left elbow osteoarthritis is remanded. Entitlement to a rating in excess of 10 percent for right ankle osteoarthritis is remanded. Entitlement to service connection for a bilateral eye disability is remanded. FINDINGS OF FACT 1. The Veteran does not have any claimed additional residuals of heat stroke aside from his bilateral eye disability and headache disability. 2. Prior to August 26, 2011, Veteran’s service-connected disabilities did not render him incapable of maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of heat stroke have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2018). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.341, 4.16, 4.18 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1971 to June 1977 and from September 1986 to September 1989. These matters come to the Board of Veterans’ Appeals (Board) on appeal from October 2009 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2016, the Veteran had a videoconference hearing and testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection for Residuals of Heat Stroke Direct service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran has not demonstrated that he has a current diagnosis of any residuals of heat stroke. The Veteran filed his original claim for service connection for residuals of heat stroke in July 2009. See July 2009 Other, p. 1. He underwent a VA examination in February 2019 at which time he described a history of dizzy spells and lightheadedness following exposure to very high temperatures. See February 2019 VA Examination, p. 2. On examination, there was no clinical evidence to support a diagnosis of a cranial nerve condition. Moreover, the Board finds that the Veteran’s complaints and reports related to headaches and a bilateral eye condition related to heat strokes are encompassed by other disabilities currently pending before VA or previously granted by the RO. In light of the evidence, the Board finds that the Veteran does not have any functional impairment resulting from residuals of heat stroke, and the first element of service connection has not been established. In the absence of functional impairment, the evidence preponderates against the claim and there is no reasonable doubt to be resolved. Accordingly, service connection for residuals of heat stroke must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU Total disability ratings for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the period prior to August 26, 2011, the Veteran’s service-connected disabilities did not render him incapable of maintaining a substantially gainful occupation that is consistent with his education and work experience for the relevant period of time. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The evidence shows that the Veteran was employed prior to August 26, 2011 as a correctional officer. See November 2009 NOD, p. 1; July 2011 Correspondence, p. 2. The Board acknowledges that the Veteran’s service-connected disabilities impacted his work. However, the evidence of record does not demonstrate that those disabilities precluded him from maintaining his employment as a correctional officer, or that his employment as a correctional officer was marginal. In the absence of a showing that the Veteran’s service-connected disabilities precluded him from maintaining substantially gainful employment, there is no reasonable doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board finds that a TDIU for the period prior to August 26, 2011 is not warranted. In addition, although the evidence indicates that the Veteran stopped working after that time, by his own report it was due to the aggregate impact of his disabilities. See March 2018 VA Form 21-8940. Further, given that his combined schedular evaluation was 100 percent, his disability rating for the aggregate impact was not less than total. See 38 C.F.R. § 4.16(a). REASONS FOR REMAND Increased Ratings for Left Elbow Osteoarthritis and Right Ankle Osteoarthritis The Veteran underwent VA examinations in April 2018 and February 2019 for his left elbow. Each of the examination reports indicates that the Veteran experiences pain on motion that causes functional loss. However, neither report indicates at what point in the range of motion pain occurs. See 38 C.F.R. § 4.40 (2018); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Similarly, the April 2018 and February 2019 ankle examinations suffer from the same deficiency. On remand, the RO should obtain examinations that document at what point the Veteran’s left elbow and right ankle motions are limited by pain. Service Connection for a Bilateral Eye Condition The Veteran underwent a VA examination in November 2018 and the examiner opined that it was not possible to determine whether the Veteran’s current eye disabilities are etiologically related to his active duty service without resorting to speculation. November 2018 VA Examination, p. 5. The examiner indicated that there was no mention in the Veteran’s service treatment records (STRs) of optic atrophy or visual effects associated with his 1975 heatstroke. In a March 2019 statement, the Veteran indicated that there are additional STRs which would show that he had vision problems during his active duty because he had vision tests twice during each period of his active duty. See March 2019 Private Treatment Records, p. 1. A review of the Veteran’s STRs indicate that he was treated on at least one occasion for an eye complaint. See July 2014 STRs, p. 39. On remand, the RO should conduct additional development efforts to identify and obtain any outstanding STRs. After such efforts have been made, an addendum opinion should be obtained that considers the Veteran’s documented in-service complaints and any changes to his vision. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to ascertain the current severity and manifestations of his left elbow osteoarthritis. All indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The entire claims file should be made available to the examiner designated to provide an opinion. The examiner should report all signs and symptoms necessary for evaluation of the Veteran’s left elbow disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees for the Veteran’s left elbow. Range of motion test results should be provided for 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 examination report. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the left elbow is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion lost due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. If the examination does not take place during a flare, the examiner must glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the veteran, medical records, and other available sources. Efforts to obtain such information must be documented. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 2. Schedule the Veteran for an examination to ascertain the current severity and manifestations of his right ankle osteoarthritis. All indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The entire claims file should be made available to the examiner designated to provide an opinion. The examiner should report all signs and symptoms necessary for evaluation of the Veteran’s right ankle disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees for the Veteran’s right ankle. Range of motion test results should be provided for 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 examination report. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right ankle is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion lost due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. If the examination does not take place during a flare, the examiner must glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the veteran, medical records, and other available sources. Efforts to obtain such information must be documented. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 3. Undertake all appropriate action to obtain any missing STRs from whatever appropriate source from the Veteran’s active duty service from August 1971 to June 1977 and from September 1986 to September 1989. If there are outstanding records obtained, prepare a Memorandum of Formal Finding of Unavailability of Service Treatment Records outlining the steps taken to retrieve the Veteran’s STRs, and notify the appellant. A copy of the memorandum should be associated with the claims file. 4. After such development efforts have been made, an addendum opinion regarding the nature and etiology of the Veteran’s bilateral eye condition should be obtained. If possible, return the claims file to the examiner that provided the November 2018 opinion. If the November 2018 examiner is unavailable, the requested opinion should be rendered by another qualified examiner. The examiner is specifically asked to consider whether it is at least as likely as not that the Veteran’s current bilateral eye condition is etiologically related to any documented in-service eye complaints or vision changes as reflected in his STRs. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.V. Walker, Associate 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.