Citation Nr: 21007979 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 07-20 839A DATE: February 11, 2021 REMANDED The issue of a disability rating in excess of 10 percent for arthritis of the left foot associated with fused left great toe is remanded. The issue of a disability rating in excess of 10 percent for fused left great toe and metatarsophalangeal joint (left great toe disability) is remanded. The issue of a compensable disability rating for hammertoe of the left fifth toe associated with fused left great toe is remanded. The issue of a disability rating in excess of 10 percent for posterior vitreous detachment with glaucoma of the left eye is remanded. The issue of a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from September 1972 to December 1978 and from March 1987 to July 1987. In April 2014, the Veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the claims file. The Veteran was offered the opportunity for another hearing but declined in November 2017. In September 2020, the Veteran requested a virtual tele-hearing. In November 2020, she testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing is also associated with the claims file. This case was most recently before the Board in March 2018, and remanded for additional development. For the reasons discussed below, the record is not ready for appellate review and will again be remanded. 1. Entitlement to an increased rating for posterior vitreous detachment with glaucoma of the left eye 2. Entitlement to increased disability ratings for arthritis of the left foot, left great toe disability, and hammertoe of the left fifth toe 3. TDIU These matters are REMANDED for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR: a. VISION DISORDER RATING: The Veteran underwent a VA eye examination in August 2006. The examiner noted, “[p]lease see attached clinical and diagnostic tests.” However, these tests are not associated with the claims file. Under the regulations in effect prior to May 13, 2018, which are applicable in this case, the results of visual field testing must be recorded on a standard Goldmann chart and the chart must be included with the examination report. See 38 C.F.R. § 4.77. Remand is also warranted to schedule the Veteran for a new VA examination. The Veteran was most recently afforded a VA eye conditions examination in September 2019. During her November 2020 Board hearing, the Veteran testified that vision in her left eye had continued to worsen. She testified that she takes medication for her glaucoma, that she has a dull ache in her left eye, and that her left eye vision had worsened to the point that she is no longer able to drive at night. The Veteran’s daughter testified that the Veteran “can’t see” and that her eyesight had diminished to the point that she could not drive. The Veteran is competent to allege a worsening disability and a new VA examination is required. b. LEFT FOOT DISORDERS RATINGS (left foot, left great toe, left fifth toe): The Veteran was afforded a VA foot conditions examination in September 2019. She reported worsening pain and problems with falls and balance difficulties related to her disabilities. She further reported that her disabilities limited her ability to walk. The Veteran reported experiencing flare-ups resulting in functional loss, but the examiner did not attempt to estimate additional loss of range of motion during flare-ups. Additionally, the examiner did not include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, with range of motion measurements of the opposite undamaged joint, if possible, as requested in the Board’s March 2018 remand instructions. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that a VA examination of the joints must, wherever possible, include range of motion testing, “for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing.” In addition (and if applicable), the examiner must provide range of motion findings for the “opposite undamaged joint.” The Court further held that if for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Additionally, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examination reports must address functional loss during flare-ups, regardless of whether the veteran was undergoing a flare-up at the time of examination. These requirements are not limited to diagnostic codes involving range of motion and include disabilities involving painful joints or periarticular pathology. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). As noted, a veteran is competent to allege a worsening of a service-connected disorder and an additional VA is necessary. c. TDIU/PTSD RATING: The issue of entitlement to TDIU is inextricably intertwined with the increased rating claims, as adjudication of those issues may impact the Veteran’s total disability rating. Consideration of TDIU includes scrutiny of the effect of all service-connected disorders. The Veteran described worsening PTSD symptoms during her November 2020 Board hearing and testified that she has had thoughts of suicide. The Veteran was last afforded a VA PTSD rating examination in June 2015. Since the Veteran seeks a TDIU based on the combined effects of all of her service-connected disabilities, a VA examination to determine the current severity of her PTSD is necessary. Specific remand directives follow. 2. VISION EXAMINATION: Obtain and associate with the claims file the clinical and diagnostic tests referenced in the August 2006 VA eye examination report. Schedule the Veteran for an examination by an optometrist or ophthalmologist to determine the current severity of her service-connected posterior vitreous detachment with glaucoma of the left eye (eye disability). The examiner must review pertinent documents in the claims file, to include a copy of this REMAND, in conjunction with the examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected eye disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. 3. LEFT FOOT DISORDERS: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected arthritis of the left foot, left great toe disability, and hammertoe of the left fifth toe. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. TDIU/PTSD: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to her service-connected PTSD alone. 5. Then, readjudicate the matters on appeal, including the issue of entitlement to a TDIU. If applicable, the RO should consider referring the TDIU claim to the Director of Compensation Service for extraschedular consideration, if warranted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, 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.