Citation Nr: 21004371 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 01-09 658 DATE: January 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted on and after October 1, 2013. REMANDED Service connection for pes planus is remanded. Service connection for hypertension is remanded. FINDING OF FACT The Veteran’s service-connected disabilities have met the percentage requirements for the award of a schedular TDIU, and the evidence indicates that the nature and severity of these disabilities have prevented him from performing gainful employment for which his education and occupational experience would otherwise qualify him since October 1, 2013. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for the award of a TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from June 1984 to June 1999. These matters are on appeal from April 2012 and September 2014 rating decisions. In a September 2015 decision, the Board remanded the issue being decided below to provide the Veteran with notice of the criteria for a TDIU claim.  The Agency of Original Jurisdiction (AOJ) has done so. In a November 2017 decision, the Board remanded the issue again for adjudication in the first instance. The AOJ has done so. There was therefore substantial compliance with the remand directives with regard to that issue.  See Stegall v. West, 11 Vet. App. 268 (1998).  In its November 2017 decision, the Board also remanded claims for service connection for a left knee disorder and a right hip disorder. In a March 2020 rating decision, the AOJ granted service connection for left knee instability, left knee osteoarthritis, meniscal tear, right hip strain, limitation of flexion, and right hip strain, impairment of the thigh. These issues are no longer before the Board. The Board notes that the Veteran’s representative, in March 2014 and April 2017, sought to preserve for appeal any “failure to discharge the duty to assist.” However, neither the Veteran nor his attorney have raised any specific issue with the duty to notify or duty to assist with regard to the claim being decided below.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. TDIU The Veteran contends that his service-connected disabilities have rendered him unemployable since April 2008. However, the Veteran also reports that he last worked full-time on September 30, 2013. VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Veteran’s combined disability rating, for three periods during the period on appeal, has been 100 percent: from August 4, 2015 to September 30, 2016, from March 29, 2018 to April 30, 2018, and on and after August 31, 2020. Although the regulation provides that a TDIU may be assigned when the schedular rating is less than total, the Court has held that that the receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily render moot the issue of entitlement to a TDIU. Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). If the grant of a TDIU would assist a veteran in obtaining special monthly compensation benefits pursuant to 38 U.S.C. § 1114(s), then the issue of TDIU is not moot, even if the Veteran is in receipt of a 100 percent rating. Id. Because the Veteran was employed full-time prior to October 1, 2013, a TDIU is not warranted for that period. The Veteran’s combined disability rating on October 1, 2013 was 80 percent: his residual right knee pain and instability, status post trauma and surgical procedure was rated 30 percent disabling, his right knee limitation of extension was rated 30 percent disabling, his residual right ankle pain, status post fracture/trauma was rated 20 percent disabling, his left shoulder osteoarthritis inferior left acromioclavicular was rated 10 percent disabling, his degenerative joint disease of the right knee was rated 10 percent disabling, his left foot calluses were rated 10 percent disabling, his right foot calluses were rated 10 percent disabling, and his chronic pseudofollicular barbae with acute exacerbation and ingrown left great toenail had noncompensable ratings. The criteria for consideration of a schedular TDIU are therefore met on and after October 1, 2013. The Veteran was afforded multiple VA examinations in March 2016 by the same clinician. The clinician opined that the Veteran’s right ankle, right knee, and left shoulder disabilities rendered him unable to perform sedentary work. The Board notes that, in July 2015, the Social Security Administration (SSA) has found the Veteran disabled as of September 30, 2013 due to osteoarthrosis and allied disorders and obesity. SSA determinations, while relevant, are not binding upon the Board. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The Veteran has not been employed full-time since September 30, 2013 and a VA clinician has opined that several of the Veteran’s service-connected disabilities render him unable to perform even sedentary work. The Board therefore finds that the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities have rendered him unemployable under the applicable regulations since October 1, 2013. As reasonable doubt must be resolved in favor of the Veteran, entitlement to a TDIU is warranted on and after October 1, 2013. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for pes planus is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111 (2012). Only such conditions as are recorded in examination reports are to be considered as “noted.” 38 C.F.R. § 3.304. A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). During an April 2002 hearing before the Board with regard to portions of this appeal that have since been resolved, the Veteran testified that he had flat feet upon his entrance into active duty service and that he “initially wanted to join the Marines and they said [he] couldn’t do that” because of his feet. At the time of the Veteran’s June 1984 entrance examination, the examining clinician found the Veteran’s feet to be normal. The presumption of soundness therefore attaches with respect to this issue. The question before the Board, then, is whether clear and unmistakable evidence demonstrates that the Veteran’s pes planus existed before entry and was not aggravated by such service, so as to rebut the presumption of soundness. Because the medical opinions of record do not address this question, a remand for an additional opinion is required. The record also raises the possibility that the Veteran’s service treatment records might be incomplete. The copy of the Veteran’s June 1984 entrance examination in the claims file appears to be missing the second page of the examination report and the first page of the report of medical history. There is also nothing in the record to indicate that the AOJ attempted to obtain any records associated with any prior attempt to join the Marine Corps. The AOJ has not made a formal finding that additional service treatment or personnel records are unavailable. Because these records, if available, could be pertinent to the question of whether the Veteran’s pes planus existed prior to his active duty service, a remand is also warranted to attempt again to obtain any outstanding service treatment and personnel records. 2. Service connection for hypertension is remanded. The Veteran was afforded a VA medical opinion in April 2019. The clinician opined that the medications the Veteran takes for his service-connected disabilities did not cause or aggravate his hypertension but provided no opinion with regard to any other theory of service connection. For VA rating purposes, “the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater.” The Veteran’s service treatment records include eighteen blood pressure readings that meet this requirement, as well as two in a private treatment record from February 2000, eight months after the Veteran’s separation from active duty service. The record therefore raises the possibility of service connection on a direct basis and on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 (2020). In addition, in a September 2011 statement, the Veteran contended that his service-connected right knee and right ankle disabilities had caused him to gain weight and that this, in turn, had caused his hypertension. In 2017, VA’s General Counsel issued a precedent opinion which held that obesity is not subject to service connection on a direct basis, cannot qualify as an in-service disease or injury for the purposes of service connection, and generally cannot be service connected on a secondary basis as a disability directly resulting from a service-connected disability. VAOPGCPREC 1-2017 (Jan. 22, 2017). It was further held, however, that obesity can be an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. Id. In order for obesity to be such an “intermediate step,” (1) a service-connected disability must have caused the Veteran to become obese, (2) obesity must have been a substantial factor in causing the disability in question and (3) the disability in question must have been one that would not have occurred but for obesity caused by the service-connected disability. Id; see also Marcelino v. Shulkin, 29 Vet. App. 155 (2018). A remand is therefore necessary to afford the Veteran an addendum opinion regarding direct service connection, service connection on a presumptive basis, and service connection on a secondary basis with obesity as an intermediate step. The matters are REMANDED for the following action: 1. Obtain any outstanding service treatment and personnel records, including the second page of the Veteran’s June 1984 entrance examination, the first page of the June 1984 report of medical history, and any records associated with an attempt to join the Marine Corps prior to June 1984. Make as many requests as are necessary to obtain relevant records and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. All negative responses must be documented. If no records are available, the claims folder must indicate this fact and the Veteran should be notified; this notice should advise the Veteran to submit any copies of these records he might have in his possession. 2. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran’s pes planus. The entire claims file and a copy of this remand must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a) Whether the Veteran’s pes planus clearly and unmistakably existed prior to his active duty service. b) If the answer to a) is yes, whether the Veteran’s pes planus was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. c) If the answer to a) or b) is no, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s pes planus began during active service or is related to an incident of service. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A partial report of the Veteran’s June 1984 entrance examination, noting his feet as normal. b. September 1985 service treatment records noting the Veteran’s report of right foot pain and bilateral calluses. c. The Veteran’s report during his April 1999 separation examination of a history of foot trouble. d. The Veteran’s testimony during an April 2002 hearing that he had flat feet prior to his entrance into active duty service, that he was not permitted to join the Marine Corps as a result, and that he was given “special boots.” e. The Veteran’s attorney’s contention in an April 2013 statement that the Veteran’s in-service calluses are “a known indicator of pes planus.” The rationale for any opinion expressed should be provided. Note that the Veteran’s service treatment records may be incomplete and the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran’s hypertension. The entire claims file and a copy of this remand must be made available to the examiner for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a. Whether it is as likely as not (a probability of 50 percent or greater) that any current hypertension had its origin in service, had its onset within one year of the Veteran’s separation from active duty, or is otherwise related to the Veteran’s active service. b. Whether it is as least as likely as not that any current hypertension was caused by the Veteran’s service-connected orthopedic disabilities. c. Whether it is as least as likely as not that any current hypertension was aggravated beyond its natural progression by the Veteran’s service-connected orthopedic disabilities. d. Whether it is at least as likely as not that the Veteran’s service-connected orthopedic disabilities caused him to become obese or aggravated his obesity. e. Whether it is at least as likely as not that the Veteran’s obesity was a substantial factor in causing his hypertension. f. Whether it is at least as likely as not that the Veteran’s hypertension would not have occurred but for obesity caused or aggravated by his service-connected orthopedic disabilities. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. Blood pressure readings from service treatment records on the following dates: April 12, 1986, June 24, 1987, July 15, 1987, July 20, 1987 (multiple readings), July 27, 1987 (multiple readings), April 24, 1988, May 12, 1997, September 2, 1997, October 31, 1997, December 29, 1997, December 30, 1997, September 9, 1998, December 3, 1998, February 2, 1999, March 16, 1999, March 31, 1999, and his April 15, 1999 separation examination, as well as his report at the time of his April 15, 1999 separation examination of a history of high blood pressure and the examining clinician’s finding of “slightly elevated” blood pressure. b. Blood pressure readings, including a recheck, from a private treatment record on February 23, 2000, eight months after the Veteran’s separation from active duty service. c. The Veteran’s contentions in a September 2011 statement regarding the etiology of his hypertension. The rationale for any opinion expressed should be provided. Note that the Veteran’s service treatment records may be incomplete and a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. Ensure that the directives specified in this remand have been implemented.  If they have not, appropriate corrective action must be undertaken before readjudication.  Stegall v. West, 11 Vet. App. 268 (1998).    (Continued on the next page)   5. Then, readjudicate the claims.  If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.