Citation Nr: 21073902 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-42 322 DATE: December 13, 2021 REMANDED Entitlement to an extended temporary total rating based on convalescence under 38 C.F.R. § 4.30 for right first metatarsal osteoarthritis, with plantar spur and chronic tendonitis (hereinafter right foot disability) from April 1, 2013 to August 27, 2014 is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for disability resulting from surgical treatment performed at the Durham VA Medical Center in July 2012 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is remanded. Entitlement to a disability rating in excess of 30 percent for status-post diffusion and bone graft, 2-4 metatarsal joints, with general joint disease (hereinafter left foot disability) is remanded. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a disability rating in excess of 20 percent for the Veteran's right foot disability is remanded. INTRODUCTION The Veteran had active service from June 1968 to July 1972 and February 1982 to January 1988. In September 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. REASONS FOR REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran's claims are decided. The record shows the Veteran has undergone several surgeries to correct his right foot disability. Specifically, operative reports show he underwent surgeries at both the Durham VAMC, as well as fee-based surgery in February 2013, August 2014, and November 2015. By way of a recent October 2021 memorandum brief from his attorney, the Veteran asserted his total disability rating based on convalescence should have been extended from the date of his initial surgery in February 2013 through the date his second convalescence period ended in December 2014 because during that time frame the Veteran was in a cast. To date, the RO has not informed the Veteran of what information or evidence he should submit in order to obtain the benefit sought. As such, the Board finds a remand is warranted. Next, the Board notes the Veteran has initiated a claim for disability compensation pursuant to 38 U.S.C § 1151, which he has indicated stems from a surgical procedure performed at the Durham VAMC in July 2012. A review of his treatment notes from the Durham VAMC shows he underwent a left superficial parotidectomy procedure in July 2012 to aspirate a Warthin's tumor. The Veteran reports he experienced, and continues to experience, facial numbness, left ear numbness, and visual problems following that procedure. The RO obtained a VA medical opinion from an Otolaryngology Specialist at the Durham VAMC in March 2015. The examiner cursorily found the Veteran has not experienced a permanent disability, but wholly failed to acknowledge or discuss his reported ongoing manifestations. Medical examination reports must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, the Board finds that in order to avoid the appearance of bias or impropriety, a medical opinion should be obtained from a VA surgeon that is not employed at the Durham VAMC. For these reasons, a remand is necessary. Finally, during his recent September 2021 hearing the Veteran reported his left and right foot disability, as well as his PTSD had worsened. He most recently underwent VA examinations to assess his foot disabilities and PTSD in September 2013. As there is evidence of a worsening of the disabilities the claims must be remanded for examinations to determine the current severity of the disabilities. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board notes the issue of entitlement to a TDIU rating must be held in abeyance at this time, because this issue is intrinsically intertwined with the above-noted remanded issues. This follows, because increases in the Veteran's presently service-connected disabilities presently under appeal may either render this issue moot, or assist in establishing TDIU entitlement. Accordingly, these matters are REMANDED for the following actions: 1. Provide all required notice to the Veteran concerning the information or evidence he should submit in order to obtain an extension of a temporary total rating based on convalescence under 38 C.F.R. § 4.30 from April 1, 2013 to August 27, 2014 for his right foot disability. Thereafter, undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim for compensation under 38 U.S.C. § 1151, to include any more recent treatment records related to the claimed disability, as well as all documentation establishing an informed consent was obtained from the Veteran prior to his July 2012 surgical procedure. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Also, afford the Veteran a VA examination by an appropriate Surgeon, who is not employed at the Durham VAMC, to fully assess his claimed residual facial and ear numbness, as well as eye disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on a review of the Veteran's pertinent history and the examination results, the examiner should state an opinion as to whether there is a 50 percent or better probability that the Veteran's current disabilities, if diagnosed, resulted from his July 2012 left superficial parotidectomy surgical procedure at the Durham VAMC. In this respect, the central issue that must be determined by the examiner is whether the Veteran's current disabilities, if diagnosed, were at least as likely as not (a 50 percent probability or greater) proximately caused or aggravated by: a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Durham VAMC; or b) an event that could not have reasonably been foreseen by a reasonable healthcare provider administering the Veteran's July 2012 surgical procedure. In this regard, the examiner must discuss and consider the Veteran's competent lay statements as they relate to his reports of experiencing facial numbness and droop, ear numbness, and vision problems since that time. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide the required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected left and right foot disabilities and PTSD. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the appropriate examiner provides all information required for rating purposes. With respect to the Veteran's left and right foot disabilities, ensure the examiner provides both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If an examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Obtain from a VA examiner an assessment of the functional impact of the Veteran's service-connected disabilities on his employability. In this regard, the examiner should provide concrete examples of functional impairments caused by the Veteran's service-connected disabilities. Such impairments include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. This assessment should include any impairments caused by the Veteran's medications taken to treat his service-connected disabilities. An estimation in measurements such as time and distance, with respect to standing, sitting, or walking limitations would be of great assistance. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.