Citation Nr: 21006477 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-22 015 DATE: February 4, 2021 REMANDED Entitlement to service connection for bilateral pes planus to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served active duty with the U.S. Army from June 1975 to December 1981, from January 1991 to March 1991, and from August 1991 to May 1992. During this time, he was awarded the Southwest Asia Service Medal and the National Defense Service Medal, among other awards. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2019, the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans’ Law Judge. A transcript of that hearing has been reviewed and associated with the claims file. The matter was previously before the Board in January 2020, where it was remanded for evidentiary development, including affording the Veteran appropriate VA examinations. The matter has returned to the Board for further appellate review. During the pendency of this appeal, in a September 2020 rating decision, service connection for lumbosacral strain and degenerative arthritis of thoracolumbar spine was granted with an evaluation of 20 percent effective May 19, 2015. The Veteran has not in response, separately appealed either the rating or effective date assigned for his lumbosacral strain and degenerative arthritis of thoracolumbar spine. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). As such, the service connection for lumbosacral strain and degenerative arthritis of thoracolumbar spine claim is no longer on appeal to the Board. 1. Entitlement to service connection for bilateral pes planus to include as secondary to a service-connected disability is remanded. The Board sincerely regrets any further delay, however, as explained below, a remand of this matter is necessary. The Veteran contends that his bilateral feet disability is related to his Military service. Following the Board’s January 2020 remand instructions, the Veteran was afforded a VA Foot Conditions examination in September 2020, to determine whether any foot disability is related to Military service to include as secondary to service connected disabilities. The diagnoses were: bilateral flat foot, bilateral plantar fasciitis, and bilateral degenerative arthritis. Regarding direct service connection, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that during service the left foot condition was acute only; that there was no evidence of a chronic foot condition within a year of service separation; and that twenty one years after separation in 2013 was when the Veteran was noted with congenital pes planus and bilateral foot arthritis. Regarding secondary service connection, the examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner’s rationale was that the Veteran had clear and unmistakable evidence of the preexisting PES PLANUS (Congenital pes planus). There is evidence to indicate the Veteran continued to suffer from the disorder during service, which is typical of the condition. However, the progression is not beyond normal progression for this disorder. No evidence of permanent aggravation beyond normal progression is identified. The examiner continued that the left foot pain in the Veteran’s service treatment records (STRs) was an acute condition; and that there is no evidence of chronicity of care during service and post service; and that the diagnosis of congenital pes planus and plantar fasciitis is a separate condition and unrelated to left foot pain playing basketball. The examiner further remarked that “there is NO evidence to indicate that the Veteran continued to suffer from the disorder during service”; and that “abnormal foot structure such as pes planus is a risk factor or can predispose an individual to plantar fascitis from the biomechanics increase in strain on the plantar, and it’s a normal progression”. The examiner also noted that bilateral degenerative arthritis of the feet diagnosis is a separate entity and not related to the Veteran's service connected disabilities to include bilateral knees; that arthritis is wear and tear of joint and does not move from joint to joint; that Veteran is 64 yrs old and obese, and therefore arthritis in his feet will be related to natural aging progression. See September 2020 C&P Examination. The Board finds the September 2020 VA examination inadequate because the opinion did not account for all relevant evidence of record. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding a medical opinion based on an inaccurate factual premise is not probative). The examiner noted that the left foot complaint in service was acute. However, the evidence reveals that the Veteran made numerous complaints in service about his feet conditions. Apparently, it appears that the examiner did not review the complete record but rather relied on a single entry made on May 29, 1979 in the STRs and the 2013 post-service VA treatment records (as noted in the evidence comments). In addition, the examiner opined that the Veteran’s pes planus is congenital. However, the military entrance examination is unremarkable for pes planus or any other foot disability; therefore, the Veteran is entitled to the presumption of soundness on entry into service with respect to this condition, which in turn only may be rebutted by clear and unmistakable evidence of preexistence and by clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progression of the preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1096-97 (Fed. Cir. 2004). Further, the examiner did not specifically provide an opinion as to whether the Veteran's feet conditions are aggravated by his service-connected knee disabilities. As such, the September 2020 opinion is insufficient for rating purposes and remand is required for a new VA medical opinion to address the etiology of the Veteran's bilateral feet disorders. 2. Entitlement to service connection for a bilateral eye disability is remanded. The Veteran asserts that his bilateral eye disability had its onset in service and had continued since. Following the Board’s February 2020 remand instructions, the Veteran was afforded a VA Eye Conditions examination in September 2020. The Veteran’s diagnosis included bilateral normal tension glaucoma suspect, cataracts-mixed forms and dry eye syndrome. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that the service/treatment records fail to demonstrate that the current diagnosed conditions began in the military or was related to the Veteran's active duty. See September 2020 C&P Examination. The Board finds the September 2020 VA examination opinion is inadequate. The examiner relied heavily on the lack of medical evidence of a diagnosis of the similar eye conditions in service, which is not by itself a basis to conclude that there is a lack of nexus between the current bilateral eye disability and service, and thus, failed to address the Veteran's contentions as to continuity of symptoms since service, as noted in the record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006). The Board also points out that, "symptoms, not treatment, are the essence of evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997). Accordingly, an addendum VA medical opinion is warranted. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. The Veteran contends that his service-connected disabilities have prevented him from obtaining and maintaining substantially gainful employment. TDIU benefits may be granted when it is established that the Veteran has service-connected disabilities that are so severe as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). However, failure to meet the schedular requirements for TDIU is not a bar to benefits. All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). If the Board determines that the Veteran is unemployable due to his service-connected disabilities and does not meet the schedular requirements, the Board must refer the TDIU claim to the Director of Compensation Service for extraschedular consideration. Id. Here, effective May 19, 2015, the Veteran's combined compensation rating is 70 percent to include: 30 percent rating for adjustment disorder with mixed anxiety and depressed mood (claimed as posttraumatic stress disorder), a 20 percent rating for lumbosacral strain and degenerative arthritis of thoracolumbar spine, a 10 percent rating for arthritis of the left knee, limitation of flexion, a 10 percent for arthritis of the right knee, a 10 percent rating for degenerative arthritis of the right knee, a 10 percent for degenerative arthritis of the left knee with lateral instability, a 10 percent rating for arthritis of the left knee, limitation of extension (previously rated as arthritis of the left knee, limitation of flexion, and a 10 percent rating for right knee instability, a 10 percent for lumbar radiculopathy, sciatic nerve, right lower extremity associated with lumbosacral strain and degenerative arthritis of thoracolumbar spine, a 10 percent rating for lumbar radiculopathy, sciatic nerve, left lower extremity associated with lumbosacral strain and degenerative arthritis of thoracolumbar spine, and a 10 percent for arthritis of the left knee, limitation of extension. However, there is no single disability rated at 40 percent. Thus, the Board finds entitlement to schedular TDIU is not warranted in this case. Nonetheless, the Board may consider whether it is appropriate to refer the Veteran's claim to the Director, Compensation Service under 38 C.F.R. § 4.16 (b). Such a referral is appropriate only when a claimant's service connected disabilities render the claimant unemployable (i.e. unable to secure or follow gainful employment). For the purposes of TDIU, "substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a) (2018). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed to Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected hypertension, radiculopathy, back and knee disabilities. The Veteran's TDIU application notes that he last worked in May 2008 as a mechanic. A September 2015 PTSD examination noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. See September C&P examination. A September 2020 examiner opined that the Veteran's service-connected lumbar spine conditions will impact his ability to perform occupational tasks because of bending and lifting difficulties. See September 2020 C&P examination. Social Security Administration records reveal that the Veteran is currently receiving benefits as a result of his service-connected disabilities. See Medical Treatment Records - Furnished by SSA. The Veteran has consistently contended that the limitations of his service connected disabilities have prevented him from being able to work for the entire appellate period. The Board does not doubt the sincerity of the Veteran's beliefs and the evidence of record as a whole appears to confirm that he has significant limitations in his ability to walk, climb, bend, or lift, due to his service-connected disabilities. The Veteran is also certainly permitted to provide an opinion as to the observable effects of his service connected disabilities, including difficulty with these activities. Accordingly, the Board finds that his statements are entitled to some degree of probative weight. The Board notes that some VA examiners have opined that the Veteran’s disabilities do not prevent him from working. The Board notes that medical evaluations are probative to understanding the level of functional impairment, but the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board ultimately finds that the limitations caused by the Veteran's service connected disabilities in totality, suggest that he may be precluded from securing and following substantial gainful occupations. However, as stated above, the Board is prohibited from awarding extraschedular TDIU in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). Accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service. The matters are REMANDED for the following action: 1. Obtain any additional outstanding VA/private treatment records for the Veteran and associate them with the claims file. 2. After completion of step 1 above, obtain a medical opinion from an examiner with the appropriate specialty to determine the nature and etiology of the Veteran’s bilateral feet disabilities. Based upon a review of the entirety of the claims file, the examiner is requested to provide an opinion as to the following questions: (a) whether or not the Veteran’s bilateral feet disabilities are congenital defects. If Yes, whether it is at least likely as not (50 percent or greater probability) that the feet disabilities are aggravated by the Veteran’s active service. (b) If the bilateral feet disabilities are Not congenital, whether it is at least likely as not (50 percent or greater probability) that the disabilities are by or otherwise related to the Veteran’s active service. (c) If the feet disabilities are not congenital, whether it is at least likely as not (50 percent or greater probability) that the disabilities are caused by or aggravated by any of the Veteran’s service-connected disabilities, to include his bilateral knee and lumbar spine disabilities. 3. After completion of step 1 above, obtain a medical opinion from an examiner with the appropriate specialty to determine the nature and etiology of the Veteran’s bilateral eye disability. Based upon a review of the entirety of the claims file, the examiner is requested to provide an opinion as to the following question: (a) whether or not the Veteran’s bilateral eye disability is at least likely as not (50 percent or greater probability) related to the Veteran’s active service. The examiner(s) must provide a complete rationale for all opinions expressed. As part of the rationale, the examiner(s) should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance. If the examiner(s) cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner(s) must indicate whether there was any further need for information or testing necessary to make a determination. The examiner(s) must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After completion of the above development, readjudicate the Veteran’s claims for entitlement to service connection for bilateral eyes and bilateral feet disabilities. If the benefits sought are not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. 5. Refer the Veteran's claim for TDIU to the Director of the Compensation Service for extraschedular consideration of entitlement to TDIU. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.