Citation Nr: 21013054 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-15 558 DATE: March 8, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for hypertension is remanded. Entitlement to a disability rating in excess of 10 percent for residuals of Achilles tendonitis and heel spur of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1998 to November 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). Of note, in a January 2016 rating decision, the RO increased the disability ratings for each disability on appeal from noncompensable to 10 percent disabling. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing is in the Veteran’s file. The Board notes that the Veteran submitted a claim for a temporary total evaluation regarding disability of the left lower extremity. The issue has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. Regarding the Veteran’s claim for a higher rating for his hypertension disability, a review of the entire claims file shows that the Veteran’s last examination for the service-connected disability was in January 2016, over five years ago. In his March 2016 substantive appeal, the Veteran noted that he had readings higher than 110 for his hypertension every time the readings were conducted by his doctor. At his January 2021 Board hearing, the Veteran stated that his condition had gotten worse since his last examination. He noted that his blood pressure readings fluctuated. He stated that his numbers were highly elevated from time to time. He also noted that he experienced side effects due to his medication, to include headaches. As the record reflects, the Veteran’s disability may have either progressed in nature or worsened since the last VA examination. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995). As such, the Board finds that a new hypertension examination would assist in fully and fairly evaluating the Veteran’s claim for an increased rating. Regarding the Veteran’s claim for a higher rating for his residuals of Achilles tendonitis and heel spur of the right lower extremity disability, a review of the entire claims file shows that the Veteran’s last examination for the service-connected disability was in December 2019. The Board notes that the December 2019 examination was provided for an appeal for the Veteran’s left achilles tendonitis disability which not on appeal at the Board; however, the Veteran’s right foot was examined. In his March 2016 substantive appeal, the Veteran noted that he had taken pain medication at the time of his January 2016 VA examination and he disagreed with his range of motion results. The Veteran stated that the examiner had told him to “flex through the pain.” The Veteran noted that his examination was not conducted under normal conditions and that his noted movements were beyond his everyday limitation. At his January 2021 Board hearing, the Veteran stated that he again experienced bone spurs in his ankle. He noted undergoing surgery in 2019. He noted that he could not run or jump and was in constant pain. He also stated that he had an upcoming appointment with a podiatrist. It was noted that his medical records were with VA. The Board notes that the United States Court of Appeals for Veterans Claims (Court) held that a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. That final sentence of § 4.59 directs that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). As the record reflects, the Veteran’s disability may have either progressed in nature or worsened since the last VA examination. Id. As such, the Board finds that a new foot examination, that conforms to the Court’s decision in Correia, would assist in fully and fairly evaluating the Veteran’s claim for an increased rating. Next, VA must address the issue of entitlement to TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. At the Veteran’s January 2021 Board hearing, the Veteran noted that when the stress level is high at work, he has to take off from work, sit in a dark room, and calm down. He also noted that when he is away from his desk, and traveling to construction sites and buildings conduct surveys, his ability to go up and down stairs, if there is not an elevator available, is affected. As such, the RO should develop the issue, as it derives from the underling increased rating appeal. While on remand, any and all VA medical records should also be obtained. These records are to include the noted surgery for his achilles tendon disability discussed during his January 2021 Board hearing. If it is found that the surgery was conducted by a private doctor, the Veteran should be provided with an opportunity obtain or ask VA to obtain any private (non-VA) medical records relevant to the remanded claim. The RO should make an attempt to obtain the private treatment records after securing any necessary authorization. The matters are REMANDED for the following action: 1. Furnish the Veteran a 38 C.F.R. § 3.159(b) notice letter addressing the evidence and information needed to establish his claim for entitlement to TDIU. Allow an appropriate amount of time for response and associate the notification with the claims file. All development action necessitated by any response should be accomplished. 2. Ask the Veteran to provide the names and addresses of all medical care providers, both private and VA, who may have additional records pertinent to the remanded claims. After the Veteran has signed any appropriate releases, any relevant records identified that are not duplicates of those already contained in the claims folder should be requested. If any requested records cannot be obtained, the Veteran should be notified of such. 3. Obtain complete VA treatment records not already associated with the claims file since January 2019. 4. Schedule the Veteran for a VA hypertension examination, with an examiner who has reviewed the claims file, to determine the current symptoms and severity of his service-connected hypertension. All tests, studies, and evaluations should be performed as deemed necessary by the examiner, utilizing the most up-to-date Disability Benefits Questionnaire. The results of any testing must be included in the examination report. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria. A complete rationale for any opinion is required. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. 4. Schedule the Veteran for a VA orthopedic examination to evaluate the severity of his service-connected right heel disability, to include the required testing pursuant to the holding in Correia. The examiner, after a review of the claims file, should conduct range of motion studies, and assess any functional impairment due to such factors as pain and weakness, and express this functional impairment in terms of further loss of motion. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If for any reason the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. A complete rationale for any opinion is required. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.