Citation Nr: 21003618 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 15-18 580A DATE: January 22, 2021 REMANDED Entitlement to service connection for bilateral flat feet is remanded. Entitlement to an increased rating exceeding 10 percent for service-connected degenerative arthritis of the left knee ("left knee disability") 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 August 1986 to August 1989. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In February 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a live Board Hearing. A transcript of the hearing is of record. These matters were previously before the Board in September 2018, where they were remanded for additional development. The Board notes that there was not substantial compliance with its September 2018 remand directives as it pertains to the Veteran’s left knee disability claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Regrettably, another remand is necessary. As an initial matter, the Board notes that an inferred claim for TDIU has been raised by the record, as the Veteran indicated that he is unable to work due to his service-connected left knee disability. Therefore, as the claim for TDIU is part of the increased rating claim currently before the Board, the Board finds that the issue had been properly added as shown on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation). 1. Entitlement to service connection for bilateral flat feet is remanded. After review of the record, the Board finds that further development of the medical evidence is required prior to adjudicating the Veteran’s service connection claim, in accordance with VA’s duty to assist. As an initial matter, the Board notes that the Veteran’s bilateral pes planus was noted upon entry into active duty service, deeming the presumption of soundness inapplicable. Therefore, the primary issue before the Board becomes whether the preexisting bilateral pes planus was aggravated by such service, thus, attaching consideration of the presumption of aggravation in this claim. See Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) (“there is a related by distinctly different statutory provision that pertains to cases in which a preexisting condition is noted on an entrance examination and the claimant contends that this condition was aggravated in service. This provision is known as the ‘presumption of aggravation’.”). In October 2020, the Veteran was afforded a VA examination to assess his claimed condition, where the examiner confirmed the diagnosis of pes planus, bilaterally; however, provided an unfavorable opinion as to this condition being etiologically related to the Veteran’s active duty service. Nevertheless, the Board finds this opinion to be inadequate for adjudicative purposes, as the examiner failed to provide an opinion specifically related to preexisting conditions – whether the Veteran’s bilateral pes planus increased in severity during active duty service, and if so, whether the increase was clearly and unmistakably due to the natural progress of the condition; with consideration and discussion of the Veteran’s competent and credible lay statements of worsening during service. Therefore, based on the above, the Board finds that the Veteran should be provided an addendum VA medical opinion, prior to re-adjudication of the claim, and in accordance with VA’s duty to assist. Accordingly, a remand is necessary to address the matters discussed above. 2. Entitlement to an increased rating exceeding 10 percent for service-connected degenerative arthritis of the left knee ("left knee disability") is remanded. As noted above, the Veteran’s claim was remanded in September 2018 for additional development, requesting that the AOJ “[r]eadjudicate the issues on appeal in light of all additional evidence added to the record.” See Remand BVA or CAVC, September 2018. The basis for this remand was due to the submission of additional pertinent evidence, specifically a January 2018 VA knee examination, without a waiver after issuance of the September 2016 supplemental statement of the case (SSOC). After review of the record, the Board finds that the AOJ failed to readjudicate this issue in light of the January 2018 VA examination. In fact, the record reflects that a new SSOC was issued in October 2020, which does not reveal consideration of the examination in the noted “evidence” section. Additionally, while the Board acknowledges that an August 2019 rating decision (granting service connection for another left knee disability) was issued following consideration of the January 2018 VA examination, the Board is not persuaded that this serves as a presumption that this additional evidence was also considered in light of this particular issue, as the rating decision does not discuss the issue currently on appeal nor does the October 2020 SSOC for this issue reflect that this rating decision or the January 2018 VA examination was among the evidence considered. Therefore, based on the above, the Board finds that the claim must be referred back to the AOJ for consideration of the January 2018 VA examination for this issue, in compliance with Stegall. Additionally, the Board notes that, upon review of the January 2018 VA examination, the Board finds that the examiner did not provide sufficient information regarding the Veteran’s reports of experiencing flare-ups, pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). Sharp requires, when a Veteran complains of flare-ups, the examiner must “state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, they affect functional impairment.” 29 Vet. App. at 10-11. If feasible, functional loss due to flare-ups should be expressed in terms of the degree of additional range-of-motion loss. If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. Furthermore, in situations where an examination is not conducted during a flare-up, a VA examiner should estimate functional loss based on the Veteran’s descriptions of his/her additional loss of function during flare-ups, gleaned from his/her medical records, or discerned from other sources available to the examiner. Id. at 35-36. Within the January 2018 VA examination, the Veteran reported experiencing flare-ups; however, the examiner failed to ascertain the required information as to the severity, frequency, duration, characteristics, or functional loss regarding the Veteran’s flare-ups by alternative means. Additionally, the Board notes that the examiner’s rationale that there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions is inadequate, as this contradicts the very essence of why Sharp requires a VA examiner to estimate this information by alternative means. Therefore, based on the above, the Board finds that the Veteran should be provided an addendum VA medical opinion to gather the necessary information to adequately understand the Veteran’s additional and/or increased left knee disability symptoms and limitations in January 2018, pursuant to Sharp, and under 38 C.F.R. § 3.159(c)(4). Accordingly, a remand is necessary to address the matters discussed above. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Board notes that as development of the Veteran’s disability claims before the Board may have an impact on the Veteran’s TDIU claim, the Board finds these issues to be inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board will defer adjudication of the inextricably intertwined TDIU claim at this time. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (private and VA) for whom he has received treatment for his bilateral flat feet and left knee disability, and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, provide the Veteran addendum VA medical opinions by appropriate clinicians to determine the nature and etiology of his bilateral flat feet and the current severity of his left knee disability. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) Opine whether the Veteran’s bilateral flat feet increased in severity during active duty service? (b) If the Veteran’s bilateral flat feet increased in severity during his service, then the examiner must opine whether it was clearly and unmistakably due to the natural progress of the condition? (c) regarding the Veteran’s left knee disability, the examiner must opine as to the Veteran’s active motion, passive motion, and pain with weight-bearing and non-weight-bearing, and if possible, with range of motion measurements of the opposite undamaged joint, during January 2018. The examiner should report (in degrees) the point at which pain is objectively recorded. The examiner must also attempt to elicit information, based on all the evidence of record, regarding the severity, frequency, and duration of any flare-ups, during January 2018. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s disabilities, and report or estimate functional loss in terms of the degree of additional loss of range of motion, during January 2018. Please note: If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his/her conclusion that a non-speculative opinion cannot be offered. The examiner must provide a complete rationale for any opinion given. 3. Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran’s lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. 4. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382. (2010). 5. Request the Veteran submit a properly completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 6. Readjudicate the issues on appeal in light of all additional evidence, to include the January 2018 VA examination. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.