Citation Nr: 21012293 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-18 947A DATE: March 4, 2021 REMANDED Entitlement to service connection for a left thumb condition is remanded. Entitlement to service connection for left foot hammer toes with cyst is remanded. Entitlement to service connection for right foot heel spur is remanded. Entitlement to service connection for bilateral Morton's neuroma is remanded. Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to a rating in excess of 10 percent for a left wrist strain, status post left radial fracture is remanded. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1980 to October 1980; from May 1999 to July 1999; from July 2007 to January 2011; and from April 2012 to August 2012. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. As an initial matter, the Board discusses in detail below the reasons each claim is remanded. However, in order to decide the claims, upon remand the RO should obtain and clarify the Veteran’s dates of service including any periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA). 1. Entitlement to service connection for a left thumb condition is remanded. The Veteran seeks service connection for a left thumb injury which she contends occurred during active service when she was hit by a car. See November 2018 Board Hearing Transcript. The Veteran underwent a VA examination in October 2013. The VA examiner did not find a current left thumb diagnosis. However, service treatment records (STRs) note the Veteran being diagnosed with left thumb osteoarthritis. See November 2009 STR. The Board finds a new examination is needed as to whether the Veteran has a current diagnosis of a left thumb condition. In addition, a January 2013 medical record indicates a Dr. B. opined the Veteran’s left thumb osteoarthritis was not due to the incident of the Veteran being hit by a car. As such, if a left thumb condition is found, the examiner should clarify and explain the etiology of any left thumb condition. Further, the Veteran testified at the November 2018 Board hearing that she would be receiving treatment for her left thumb after the hearing occurred. As the Veteran has identified outstanding records that could help substantiate her claim, a remand to obtain those documents is warranted. 2. Entitlement to service connection for left foot hammer toes with cyst is remanded. 3. Entitlement to service connection for right foot heel spur is remanded. 4. Entitlement to service connection for bilateral Morton's neuroma is remanded. The Veteran contends she has several right and left foot disabilities that occurred during active service from wearing military boots and walking on concrete floors. See November 2018 Board Hearing Transcript. The Veteran underwent a VA examination in October 2013. Several diagnoses were noted; however, an etiology opinion was not provided. Morton’s neuroma was not diagnosed although the Veteran has since submitted private treatment records showing a diagnosis of Morton’s neuroma. See April 2014 Private Treatment Record. As such, a new VA examination that includes an etiology opinion is warranted. In addition, the Veteran testified at the November 2018 Board hearing that she would be receiving treatment for her feet after the hearing occurred. As the Veteran has identified outstanding records that could help substantiate her claims, a remand to obtain those documents is warranted. 5. Entitlement to service connection for a left shoulder condition is remanded. 6. Entitlement to service connection for a right shoulder condition is remanded. The Veteran seeks service connection for bilateral shoulder conditions. The Veteran underwent a VA examination in October 2013. A shoulder condition was not diagnosed. However, the Veteran testified she experiences functional impairment from her shoulders due to pain during flare-ups as she has difficulty playing golf, sports, and fitness activities. An etiology opinion was not included. The Federal Circuit Court of Appeals has held that the term “disability” as used in 38 U.S.C. § 1110 ”refers to the functional impairment of earning capacity, not the underlying cause of the disability,” and that “pain alone can serve as a functional impairment and therefore qualify as a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In light of the holding of Saunders, a remand is necessary to determine whether the Veteran has a shoulder diagnosis, or whether the reported pain results in a functional impairment of earning capacity. On remand, the Veteran should be provided an examination to determine the nature and etiology of the claimed bilateral shoulder disability. The examiner should describe the Veteran’s current symptomatology and address whether the Veteran’s reported shoulder pain results in any functional impairment of earning capacity. At the November 2018 Board hearing, the Veteran testified that she would be receiving treatment on her shoulders after the hearing occurred. As there are outstanding records that have been identified that could help substantiate her claims, a remand to obtain those documents is warranted. In addition, at the Board hearing the Veteran raised a new theory of entitlement, that her bilateral shoulder conditions are due to or aggravated by her service-connected lumbar spine disability. As this theory has not been developed, upon remand, an opinion should be obtained that addresses the new theory of entitlement. 7. Entitlement to a rating in excess of 10 percent for a left wrist strain, status post left radial fracture is remanded. 8. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is remanded. The Veteran seeks higher ratings for her service-connected left wrist and lumbar spine disabilities. At the November 2018 Board hearing, the Veteran testified that her left wrist disability has worsened as she experiences flare-ups that result in additional loss of motion and limitation of movement. In addition, she testified that her lumbar spine disability has worsened. Therefore, the Board finds that a remand for new examinations is warranted. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain, clarify, and document in the file the Veteran’s dates of service including any periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA). 2. Obtain any outstanding VA treatment records, to include all recent VA records addressing the Veteran’s feet, shoulders, left thumb, left wrist, and lumbar spine. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow her an opportunity to provide the missing records. 3. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 4. After completing the first three directives, schedule the Veteran for an examination (or a telehealth interview, a review of the record, or other appropriate substitute for an in-person examination, if deemed sufficient in the event that an in-person examination is not feasible) to determine the nature and etiology of any left thumb disability. The VA examiner is asked: (a.) Please identify any current diagnoses of the left thumb. (b.) Is it at least as likely as not (50 percent probability or greater) that any of the Veteran’s left thumb diagnoses had their onset in service, or is otherwise etiologically related to an in-service injury, illness, or disease to include getting hit by a car in the Pentagon parking lot? In answering the above questions, the examiner’s attention is invited to the January 2013 medical record noting and the November 2009 STR noting a diagnosis of osteoarthritis of the left thumb and recommending a splint. 5. After completing the first three directives, schedule the Veteran for an examination (or a telehealth interview, a review of the record, or other appropriate substitute for an in-person examination, if deemed sufficient in the event that an in-person examination is not feasible) to determine the nature and etiology of any right and left foot conditions. The VA examiner is asked: (a.) Please identify any current diagnoses of the right and left foot. (b.) Is it at least as likely as not (50 percent probability or greater) that any of the Veteran’s right or left foot diagnoses had their onset in service, or is otherwise etiologically related to an in-service injury, illness, or disease to include wearing military boots and walking on concrete? 6. After completing the first three directives, schedule the Veteran for an examination (or a telehealth interview, a review of the record, or other appropriate substitute for an in-person examination, if deemed sufficient in the event that an in-person examination is not feasible) to determine the nature and etiology of any bilateral shoulder disabilities. (a.) The examiner should determine whether the Veteran has any current diagnosis of a bilateral shoulder disability or pain alone that rises to the level of functional impairment. If a diagnosis or functional impairment is not shown, the examiner should explain why. (b.) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any bilateral shoulder disability (including functional impairment) had its onset during, or is otherwise related to an in-service injury, event, or disease. (c.) The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any bilateral shoulder disability was proximately due to or aggravated by the Veteran’s service-connected lumbar spine disability. The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. The examiner is advised that evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. If it not possible to provide any of the requested opinions without speculation, the examiner should 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). 7. After completing the first three directives, schedule the Veteran for an examination (or a telehealth interview, a review of the record, or other appropriate substitute for an in-person examination, if deemed sufficient in the event that an in-person examination is not feasible) to determine the current severity of her left wrist disability. 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. In so doing, 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). (Continued on the next page)   8. After completing the first three directives, schedule the Veteran for an examination (or a telehealth interview, a review of the record, or other appropriate substitute for an in-person examination, if deemed sufficient in the event that an in-person examination is not feasible) to determine the current severity of her lumbar spine disability. 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. In so doing, 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). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.