Citation Nr: 21024329 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-19 306A DATE: April 22, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for right foot hallux valgus with arthritis of the first metatarsophalangeal joint is remanded. Entitlement to an initial disability rating in excess of 10 percent from August 1, 2011, and in excess of 20 percent from February 1, 2013, for degenerative disc disease of the thoracolumbar spine is remanded. Entitlement to an initial disability rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 28, 2012, and from February 1, 2013, is remanded. REASONS FOR REMAND The Veteran had active service from May 1984 to July 2011. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran seeks entitlement to higher initial disability ratings for right foot hallux valgus with arthritis of the first metatarsophalangeal joint, degenerative disc disease of the thoracolumbar spine, and right lower extremity radiculopathy, as well as entitlement to a TDIU prior to November 28, 2012, and from February 1, 2013. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. Throughout the course of the appeal, the Veteran has reported symptomatology related to his thoracolumbar spine and right foot disabilities incongruent with the symptomology reflected in his treatment records and VA examination reports. For instance, with respect to the radiculopathy of the right lower extremity associated with the Veteran’s degenerative disc disease of the thoracolumbar spine, the Veteran described his symptoms as “constant,” “severe,” and “incapacitating” on his April 2016 substantive appeal. Furthermore, the Veteran indicated that his radiculopathy was “life changing” to the degree that he had to change jobs at a great monetary impact to him and his family, and reported nightly cramping which awakened him from his sleep. With respect to his right foot hallux valgus with arthritis of the first metatarsophalangeal joint, the Veteran described the disability as “completely incapacitating” to the degree that he was unable to perform work that required wearing footwear for long periods of time or walking, and indicating that his symptoms were so severe that they affected his everyday life. However, the Veteran’s most recent examinations in September 2019 as well as VA treatment records contradict his assertions of incapacitating pain resulting from service-connected thoracolumbar spine and right foot disabilities. For instance, a March 2020 VA treatment record indicated that the Veteran worked out in the afternoon and that he was a runner, although he had recently been unable to run due to a left knee injury sustained in January 2020. The Board notes that another March 2020 VA treatment record indicated that the Veteran, “Had a podiatry appointment surgery on his right foot,” although it is unclear as to whether this was referring to an April 2018 surgery for removal of bony spurs of the medial aspect of the first metatarsophalangeal joint or a more recent podiatry appointment. An April 2018 correspondence from a VA podiatrist at the W. G. (Bill) Hefner VA Medical Center in Salisbury, North Carolina, indicated that the Veteran was under the care of podiatry for chronic pain along both feet which had continued to worsen and remained recalcitrant to conservative treatment. Based on this correspondence, in its November 2018 Remand, the Board directed that the Veteran’s VA podiatry records be obtained and associated with the claims file. A review of the record reveals that the most recent VA treatment records associated with the claims file are dated in April 2020, approximately one year ago. As the record suggests that the Veteran still continues to receive regular treatment through VA, the Board finds that these matters must again be remanded in order to obtain the Veteran’s updated VA treatment records from the past year. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Similarly, the September 2019 VA Foot Conditions examination indicated that the Veteran experienced flares of right foot pain with running which reduced endurance, as well as with prolonged walking past ¼ mile due to fatigue and some loss of endurance. However, the examiner concluded that the Veteran’s right foot hallux valgus with arthritis of the first metatarsophalangeal joint resulted in only minimal difficulty with prolonged walking aside from some loss of endurance and inability to sustain high impact running, which may minimally impact his ability to work as a package courier/delivery man due to excessive walking; otherwise there were no other manual limitations, and no sedentary limitations. However, this examination did not explicitly consider the Veteran’s previous statements in which he described his right foot disability as “completely incapacitating” to the degree that he was unable to perform work that required wearing footwear for long periods of time or walking, and indicated that his symptoms were so severe that they affected his everyday life. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one); see also Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding that, when an examination report fails to address lay evidence, and the Board does not find the Veteran not credible or not competent to offer that evidence, the proper remedy is to obtain a new examination). As such, on remand, an addendum medical opinion should be obtained which addresses all of the Veteran’s lay statements with respect to his right foot symptomatology and any resulting functional limitations. Additionally, the September 2019 VA Back (Thoracolumbar Spine) Conditions examination indicated that the Veteran’s service-connected radiculopathy of the right lower extremity resulted in only moderate intermittent (rather than constant) pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Nonetheless, despite these findings of moderate pain, paresthesias/dysesthesias, and numbness associated with right lower extremity radiculopathy, the examiner concluded that the overall severity of the Veteran’s radiculopathy was merely mild, rather than moderate. The Board finds that an explanation is necessary as to why the Veteran’s overall radiculopathy severity was considered to be merely “mild” (as opposed to “moderate”) when the associated pain, paresthesias/dysesthesias, and numbness were all categorized as “moderate.” Moreover, the examiner did not explicitly consider the Veteran’s previous statements that his radiculopathy symptoms were “constant,” “severe,” “incapacitating,” and “life changing” to the degree that he had to change jobs at a great monetary impact to him and his family and experienced nightly cramping which awakened him from his sleep. See Miller, supra. On remand, an addendum opinion should be obtained which considers these statements. Additionally, the Board notes that both the April 2012 and September 2019 VA Back (Thoracolumbar Spine) Conditions examinations indicated that the Veteran did not exhibit guarding or muscle spasm of the thoracolumbar spine. However, a January 2020 VA treatment note indicated that the Veteran’s disability was manifested by “chronic back pain/spasms.” As the presence of spasms may result in a higher disability rating, an opinion clarifying whether the Veteran’s service-connected thoracolumbar disability was manifested by spasms at any time during the rating period on appeal and, if so, whether they were severe enough to result in abnormal gait or abnormal spine contour, should be obtained. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). Finally, the Board notes that, pursuant to its previous Remand directives, the Veteran was provided with a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) in August 2019 in an attempt to obtain the information needed to adjudicate his TDIU claim. However, to date, the Veteran has not completed and returned these forms. The Board emphasizes that the current record is ambiguous as to the Veteran’s employment history. For instance, the Veteran reported on his April 2016 substantive appeal that his disabilities were incapacitating “to the degree of an inability to perform work (employment) that requires walking.” However, VA treatment records dated as recently as March 2020 indicated that the Veteran worked at Facebook and Amazon and was a prolific author, while a December 2019 treatment record indicated that things for the Veteran were “good” and that he was publishing his eighth book. As the intertwined issues discussed above are being remanded for additional development, the Veteran should be provided with another opportunity to complete and submit the VA Form 21-8940 and VA Form 21-4192 necessary for adjudication of his TDIU claim. The Veteran is hereby advised that he has a duty to assist and cooperate with VA in developing evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA’s duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records from the W. G. (Bill) Hefner VA Medical Center in Salisbury, North Carolina, to include the South Charlotte VA Clinic in Charlotte, North Carolina, and any other associated outpatient clinics, since April 2020, and associate these records with the claims file. All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. 2. Initiate development to obtain a completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) from the Veteran, as well as a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) to the Veteran's current or former employer, if indicated. Notify the Veteran that he has a duty to assist and cooperate with VA in developing evidence for his claims. 3. After the above development has been completed, refer the Veteran's claims file to the VA examiner who provided the September 2019 VA Foot Conditions examination, or another qualified medical professional if the VA examiner is not available, for an addendum opinion regarding the severity of the Veteran’s service-connected right foot hallux valgus with arthritis of the first metatarsophalangeal joint. If the examiner finds that an additional physical examination of the Veteran is necessary, then one should be provided. Specifically, the examiner is to consider the Veteran’s April 2016 statement that his right foot disability was “completely incapacitating” to the degree that he was unable to perform work that required wearing footwear for long periods of time or walking, and that his symptoms were so severe that they affected his everyday life. The examiner is asked to discuss whether these lay statements are supported by the objective symptomatology of record. If the examiner rejects any of the Veteran's reports of symptomatology and/or functional limitation, then the examiner must provide an explanation for such rejection. Alternatively, if the examiner concludes that the Veteran’s lay statements regarding right foot symptomatology in April 2016 were supported by the objective medical evidence at that time, but subsequently decreased in severity as a result of the April 2018 surgery, then such should also be stated. 4. Provide the Veteran with an additional examination to assess the severity of his service-connected degenerative disc disease of the thoracolumbar spine and associated right lower extremity radiculopathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. If the examiner determines that a separate VA Peripheral Nerves examination report is necessary to assess the severity of the Veteran’s radiculopathy, then one should be provided. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected disabilities. The examiner should report all signs and symptoms necessary for rating the degenerative disc disease of the thoracolumbar spine and associated right lower extremity radiculopathy under the appropriate rating criteria. In providing these assessments, the examiner must acknowledge the Veteran’s April 2016 statement that his radiculopathy symptoms were “constant,” “severe,” “incapacitating,” and “life changing” to the degree that he had to change jobs at a great monetary impact to him and his family and experienced nightly cramping which awakened him from his sleep. The examiner is asked to discuss whether these lay statements are supported by the objective symptomatology of record. If the examiner rejects any of the Veteran’s reports of symptomatology and/or functional limitation, then the examiner must provide an explanation for such rejection. Additionally, the examiner is asked to indicate the severity (i.e., mild, moderate, or severe) of any pain, paresthesias/dysesthesias, and/or numbness associated with the Veteran’s right lower extremity radiculopathy. If the examiner concludes that the overall severity of the Veteran’s service-connected radiculopathy is less than the severity of any associated pain, paresthesias/dysesthesias, and/or numbness, then the examiner should explain this conclusion. Finally, the examiner is asked to indicate whether the Veteran’s service-connected thoracolumbar disability has been manifested by spasms at any time during the rating period on appeal (i.e., from August 1, 2011) and, if so, whether they were severe enough to result in abnormal gait or abnormal spine contour. In providing these opinions, the examiner is asked to specifically address the January 2020 VA treatment note which indicated that the Veteran’s disability was manifested by chronic back pain and spasms. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.