Citation Nr: 21015994 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 06-28 161A DATE: March 19, 2021 REMANDED The application to reopen a claim of entitlement to service connection for headaches is remanded. Entitlement to service connection for pulmonary embolism (claimed as blood clots secondary to menstrual problems and blackouts) is remanded. Entitlement to service connection for a chronic disability manifested by menstrual problems and blackouts to include as due to an undiagnosed illness is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for pulmonary embolism (claimed as blood clots) is remanded. Entitlement to a disability rating in excess of 30 percent for right foot pes planus is remanded. Entitlement to a disability rating in excess of 30 percent for asthma is remanded. Entitlement to a separate compensable disability rating for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from April 1980 to April 1983, October 1990 to July 1991, and January 2004 to December 2004. The Veteran also had additional service with a Reserve Component. In October 2010, the Board of Veterans’ Appeal (Board), among other things, Remand the claim for a separate compensable disability rating for GERD. In an October 2012 decision issued by a Veterans’ Law Judge not the undersigned the Board, among other things, denied the claim for a separate compensable disability rating for GERD. The Veteran appealed the October 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2013 order, which incorporated the parties Joint Motion for Partial Remand (JMPR1), the Court, among other things, vacated and remanded the Board decision to the extent that it denied a separate compensable disability rating for GERD. In January 2015, the Board, among other things, Remanded the claim for a separate compensable disability rating for GERD. In a December 2017 decision issued by a Veterans’ Law Judge not the undersigned the Board, among other things, denied the application to reopen a claim of entitlement to service connection for headaches, the claims of service connection for pulmonary embolism and a chronic disability manifested by menstrual problems and blackouts to include as due to an undiagnosed illness, the claim for compensation under 38 U.S.C. § 1151 for a pulmonary embolism, the claims for increased ratings for right foot pes planus and asthma as well as the claim for a separate compensable disability rating for GERD. The Veteran appealed the December 2017 Board decision to the Court. In a November 2018 order, which incorporated the parties October 2018 JMPR2, the Court vacated and remanded the December 2017 Board decision to the extent that it denied the application to reopen a claim of entitlement to service connection for headaches, the claims of service connection for pulmonary embolism and a chronic disability manifested by menstrual problems and blackouts to include as due to an undiagnosed illness, the claim for compensation under 38 U.S.C. § 1151 for a pulmonary embolism, the claims for increased ratings for right foot pes planus and asthma as well as the claim for a separate compensable disability rating for GERD. In May 2019, the Board Remanded the above claims. Initially, the Board notes that the Veteran is already in receipt of a total rating based on individual unemployability (TDIU) from November 6, 2015, to June 14, 2016, and a 100 percent schedular rating from June 15, 2016, to the present. Therefore, while the appeal is in Remand status, the Veteran, after consultation with her representative, may wish to consider withdrawing, in writing, the current appeal. The application to reopen a claim of entitlement to service connection for headaches, the claims of service connection for pulmonary embolism and a chronic disability manifested by menstrual problems and blackouts to include as due to an undiagnosed illness, the claim for compensation under 38 U.S.C. § 1151 for a pulmonary embolism, the claims for increased ratings for right foot pes planus and asthma as well as the claim for a separate compensable disability rating for GERD are remanded. As to all the issues on appeal, the Board finds that a Remand is required because following the issuance of the most recent supplemental statement of the case (SSOC) dated in June 2020, additional pertinent evidence was added to the claims file. To date, the Veteran has not replied to the Board’s January 2021 letter in which it gave her 45-days to waive agency of original jurisdiction (AOJ) of this evidence. Therefore, the Board finds that the appeal must be remanded for the AOJ to review this evidence before the Board can issue its’ decision. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). Next, as to all the issues on appeal, while the claims are in Remand status any outstanding VA and private treatment records should also be obtained and associated with the claims file. See 38 U.S.C. § 5103A(b). As to the claim for an increased rating for right foot pes planus, the Board notes that since this issue was last before the Board VA amended parts of the musculoskeletal rating criteria found at 38 C.F.R. § 4.71a, effective in February 2021, to include how it rates pes planus. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Given the above, the Board finds that a Remand is also required to provide the Veteran with another VA examination to ascertain the severity of her right foot pes planus under the new Diagnostic Code. See 38 U.S.C. § 5103A(d). In this regard, when again rating the Veteran’s disability the regional office (RO) should be mindful of the fact that it may only apply the new rating criteria for pes planus from the effective date of the change in the Diagnostic Code. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Given the above, the Board finds that the post-Remand SSOC should also provide the Veteran with notice of the new criteria for rating musculoskeletal disabilities under 38 C.F.R. § 4.71a. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued); Also see 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran herself should submit and new pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of her right foot pes planus. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: (a) The examiner should identify all right foot pathology found to be present during the pendency of the appeal. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. (c) In order to comply with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016), the right foot range of motion testing must be conducted in both active and passive motion, in weight-bearing and non-weight-bearing and the examiner must report whether the appellant experienced pain on passive motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case than, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) In order to comply with the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner should state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. In order to comply with the Court’s holding in Sharp, supra, the examiner based on the Veteran’s lay statements at the current examination and the other evidence of record must attempt to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up and after repeated use over time. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examination report must include a complete rationale for all opinions expressed. (Continued on the next page)   4. After undertaking the above development, the RO should issue the appellant a SSOC that considering all the evidence added to the record since it issued the June 2020 SSOC and provides notice of and adjudicates the claim for an increased rating for right foot pes planus under old rating criteria for the entire appeal period and the new rating criteria from its’ February 2021 effective date. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021); Kuzma, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.