Citation Nr: 21020816 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-51 328 DATE: April 8, 2021 ORDER Entitlement to service connection for left foot strain is granted. REMANDED Entitlement to an initial rating higher than 10 percent for degenerative arthritis of the spine, claimed as lower back injury is remanded. Entitlement to an initial rating higher than 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to an initial rating higher than 10 percent for left thumb degenerative joint disease (DJD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current left foot disability is related to service. CONCLUSION OF LAW The criteria for service connection for left foot sprain have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1979 to March 1983. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, granted service connection for degenerative arthritis of the spine, and radiculopathy of the left lower extremity, and assigned 10 percent ratings effective May 12, 2014. The RO granted service connection for left hand DJD and assigned a noncompensable rating effective May 12, 2014. The RO also denied service connection for a left foot injury. The Veteran disagreed with the denial of service connection and the initial ratings assigned, and a Statement of the Case was issued in October 2016 addressing the matters. The Veteran timely appealed. In an October 2018 rating decision, the RO recharacterized the issue of left hand DJD to left thumb DJD, and increased the rating to 10 percent, effective May 12, 2014, date of claim. Although a higher rating has been granted for left thumb DJD, this issue remains in appellate status, as the maximum available benefit has not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993). In February 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The Veteran has alleged an inability to maintain employment due to his service-connected disabilities. The issue of entitlement to a TDIU is part and parcel of an initial rating claim when such claim is raised by the Veteran or the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue of entitlement to a TDIU is before the Board. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Left Foot In this case, the Veteran has met the current disability requirement. Specifically, a October 2014 VA examination report shows a diagnosis of left foot sprain. Thus, the first element of service connection has been met. The evidence of record indicates that the in-service injury requirement has been met. Service treatment records (STRs) shows multiple treatment dates for laceration, ecchymosis, edema, tenderness, pain, drainage, and infection of the left foot. At the Veteran’s February 2021 Board hearing, he testified that he experienced left foot symptoms in service, and his symptoms has continued since service. Based on the evidence contained in the Veteran’s STRs and his competent and credible statements, the Board finds that the second element of service connection has been met. The next issue is whether the third element of a nexus has been met. In October 2014, the Veteran underwent a VA examination. The Veteran reported symptoms of foot pain. The examiner opined that the Veteran’s left foot disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner’s rationale was the Veteran has no current symptoms consistent with symptoms or injuries during his active duty period. The October 2014 VA opinion that the Veteran’s left foot disability is not related to service is of little, if any, probative value, because the examiner failed to consider competent and credible evidence of the Veteran’s report of the onset of his left foot symptoms in service, and the continuation of those symptoms in the years since service. Dalton v. Peake, 21 Vet. App. 23 (2007). While the Board could remand the claim to obtain another medical opinion, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Given the lack of an adequate medical opinion, there is no evidence in the record contrary to the Veteran’s statements, supported by the STRs, that he injured his left foot in service and continued to experience left foot symptoms since service. Therefore, the evidence is at least evenly balanced as to whether the Veteran’s diagnosed left foot strain is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, service connection is warranted for left foot strain. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REMAND 2. Degenerative Arthritis of the Spine At his February 2021 Board hearing, the Veteran testified that his service-connected low back disability had worsened since the last examination. He asserted that another bulge disc appeared, and he underwent spinal fusion surgery. The Veteran subsequently submitted private treatment records showing direct lateral interbody fusion lumbar 3-5, posterior percutaneous decompression and fusion lumber 3-5 levels surgery on November 3, 2020. The Veteran was last afforded a VA medical examination in connection with this claim in May 2018, and it appears that the severity of the Veteran’s service-connected back disability may have materially changed since he was last examined for VA compensation purposes. Additionally, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. In this case, the May 2018 VA examiner noted flare-ups of the thoracolumbar spine, but never attempted to estimate additional motion loss during flare-ups, contrary to Sharp. While the examiner stated that an opinion could not be provided without resort to speculation, he did not indicate that the speculation was due to lack of knowledge within the medical community contrary to Sharp. Consequently, a remand is warranted for a new VA examination, to be conducted in accordance with 38 C.F.R. § 4.59 as interpreted in Correia and Sharp. 3. Radiculopathy of the Left Lower Extremity At his February 2021 Board hearing, the Veteran testified that his service-connected radiculopathy of the left lower extremity had worsened since the last examination. He noted shooting, burning, freezing, and stabbing pain from the hip down to the foot. The Veteran was last afforded a VA medical examination in connection with this claim in May 2018, and it appears that the severity of the Veteran’s service-connected left lower extremity disability may have materially changed since he was last examined for VA compensation purposes. Thus, an additional VA medical examination is warranted to ensure that the Veteran’s disability is appropriately evaluated. 4. Left Thumb DJD At his February 2021 Board hearing, the Veteran testified that his service-connected low left thumb disability had worsened since the last examination. Specifically, he asserts that the arthritis is not just in his thumb anymore, but now his entire hand. He noted flareups and pain in multiple joints. The Veteran was last afforded a VA medical examination in connection with this claim in May 2018, and it appears that the severity of the Veteran’s service-connected back disability may have materially changed since he was last examined for VA compensation purposes. Thus, an additional VA medical examination is warranted to ensure that the Veteran’s disability is appropriately evaluated. 5. TDIU The issue of entitlement to a TDIU has been raised by the record. Specifically, at his February 2021 Board hearing, the Veteran testified that he stopped working about five to six years ago, due to his back disability. In a February 2021, formal TDIU application, VA Form 21-8940a, the Veteran indicated that service-connected lower back and left-hand disabilities prevents him from securing or following substantially gainful employment. Additionally, a May 2014 letter from the Veteran’s employer indicates that there had been a drop in the Veteran’s performance based on his back issues, and he could not continue working due to pain. The Veteran’s current combined disability rating is 30 percent from May 12, 2014, and 50 percent from July 11, 2015. The Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). Even where a veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted.” Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) (“The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided”), the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520 (Vet. App. Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op at 2 (Greenberg, J., dissenting) (“What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?”). Thus, the Board cannot address in the first instance whether the Veteran is entitled to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The above evidence is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019) (the initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities”). Thus, a remand referral to the Director is warranted. However, a decision on the remanded issues of entitlement to higher ratings for degenerative arthritis of the spine, radiculopathy of the left lower extremity, and left thumb DJD could significantly impact the Veteran’s combined disability rating. Thus, referral should not be made until after any decision has been made as to whether higher ratings are warranted for these disabilities and if the Veteran meets the schedular requirements, referral is not warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to include via telehealth if warranted, to determine the severity of his service-connected lumbar spine disability. The claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. The examination should be conducted in accordance with the current disability benefits questionnaire, to include compliance with 38 C.F.R. § 4.59, as interpreted in Correia, and with Sharp. 2. Schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected radiculopathy of the left lower extremity. The Veteran’s VA claims files and copy of the remand must be made available to the examiner for review in conjunction with the examination. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. The examination should be conducted in accordance with the current disability benefits questionnaire. 3. Schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected left thumb disability. The Veteran’s VA claims files and copy of the remand must be made available to the examiner for review in conjunction with the examination. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. The examination should be conducted in accordance with the current disability benefits questionnaire. 4. If, after readjudicating the remaining rating issues on appeal, the percentage ratings for the Veteran’s service-connected disabilities still do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a) for any period since the May 12, 2014 date of claim, refer the issue of entitlement to a TDIU to the Director of Compensation for any portion of the appeal period for which the Veteran does not meet the schedular requirements. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.