Citation Nr: 21008019 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-22 987 DATE: February 11, 2021 REMANDED The issue of entitlement to a disability rating in excess of 30 percent disabling, prior to March 30, 2016, and in excess of 50 percent disabling, from March 30, 2016, for bilateral pes planus, is remanded. The issue of entitlement to a disability rating in excess of 30 percent for hallux valgus, Morton’s neroma, metarsalgia and hammer toes of the left foot, is remanded. The issue of entitlement to a disability rating in excess of 10 percent disabling, prior to March 30, 2016, and in excess of 30 percent disabling, from March 30, 2016, for bronchial asthma, is remanded. The issue of entitlement to a disability rating in excess of 10 percent for residuals of fractured middle finger with synovitis and degenerative joint disease is remanded. The issue of entitlement to a compensable rating for status post tonsillectomy is remanded. The issue of entitlement to an initial rating in excess of 10 percent for right hip lateral tear with osteoarthritis is remanded. The issue of entitlement to an initial rating in excess of 10 percent for impairment of the thigh, right hip, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1979 to February 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a December 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In an August 2016 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s right foot pes planus to 50 percent disabling, effective March 30, 2016; and increased the rating for his bronchial asthma to 30 percent disabling, effective March 30, 2016. As the increases did not satisfy the appeal in full, the issues remain on appeal and have been characterized as shown above. See AB v. Brown, 6 Vet. App. 35 (1993). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disabilities at issue render him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. Increased Ratings 1. Entitlement to higher ratings for bilateral pes planus is remanded. 2. Entitlement to a higher rating for hallux valgus is remanded. 3. Entitlement to higher ratings for bronchial asthma is remanded. 4. Entitlement to higher initial ratings for right hip disabilities is remanded. 5. Entitlement higher a compensable rating for status post tonsillectomy is remanded. 6. Entitlement to a higher rating for residuals of fractured middle finger is remanded. The Board finds that further development is necessary before a decision on the merits may be made regarding the issues of entitlement to higher ratings for bilateral pes planus, hallux valgus, bronchial asthma, bilateral hip disability, tonsillectomy and residuals of fractured middle finger. The Veteran was last provided VA examinations relating to these issues in April 2016, nearly five years ago. During the November 2019 Board hearing the Veteran testified that the service-connected disabilities at issue increased in severity. In light of the Veteran’s assertions, new VA examinations are required so that the current nature and severity of the Veteran’s service-connected disabilities may be determined. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination). Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from July 2012. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. Further, during the November 2019 Board hearing the Veteran testified that he receives private treatment relating to the issues on appeal. On remand, the Veteran must be asked to complete authorization forms concerning any private medical treatment and/or submit copies of any relevant records. 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c) (1). The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matters being remanded, to include from July 2012. 2. Contact the Veteran and request that he complete and submit to VA a signed authorization for disclosure of medical records to VA for each private medical health care provider from whom he has received treatment for the disabilities at issue on appeal. After receiving any completed authorization form(s), undertake all appropriate efforts to attempt to obtain the identified records. All development efforts with respect to this directive should be associated with the claims file. The Veteran is encouraged to submit directly to VA any outstanding, relevant medical records in his possession. 3. After the above, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected bilateral foot, fracture middle finger and right hip disabilities. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran’s service-connected bilateral foot, fracture middle finger and right hip disabilities. The examiner must address the following: (a.) The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the bilateral foot, fracture middle finger and right hip disabilities. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran’s bilateral foot, fracture middle finger and right hip disabilities, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. 4. After the first two remand directives, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected bronchial asthma and status post tonsillectomy. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations and functional impairment related to the Veteran’s service-connected bronchial asthma and status post tonsillectomy. 5. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether increased ratings may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.