Citation Nr: 21029631 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-18 413 DATE: May 14, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent disabling for residuals of excision of Morton's Neuroma of left foot (also claimed as metatarsalgia) is remanded. Entitlement to an initial rating in excess of 10 percent disabling for degenerative joint disease, left knee is remanded. Entitlement to an initial rating in excess of 10 percent disabling for degenerative joint disease, right knee is remanded. Entitlement to an initial rating in excess of 10 percent disabling for lumbar spondylosis is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to service connection for traumatic brain injury is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1973 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2014 and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in December 2020 and a transcript of the proceeding is of record. A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has specifically stated that his disabilities are precluding him from employment. Therefore, in light of Rice, a claim for TDIU has been added to the underlying increased rating claims. 1. Entitlement to an initial rating in excess of 20 percent disabling for residuals of excision of Morton's Neuroma of left foot (also claimed as metatarsalgia) is remanded. 2. Entitlement to an initial rating in excess of 10 percent disabling for degenerative joint disease, left knee is remanded. 3. Entitlement to an initial rating in excess of 10 percent disabling for degenerative joint disease, right knee is remanded. 4. Entitlement to an initial rating in excess of 10 percent disabling for lumbar spondylosis is remanded. 5. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The Veteran is seeking higher ratings for his service-connected residuals of excision of Morton's Neuroma of left foot, degenerative joint disease of the left and right knee, lumbar spondylosis and bilateral hearing loss. The Veteran was last afforded VA examinations related to the matters on appeal in 2017, over four years ago. The mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined as a matter of course. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). However, given the passage of time, along with evidence of ongoing treatment for all of these disabilities, the Board finds that more contemporaneous examinations are required to accurately evaluate the severity of the Veteran's disabilities. Regarding the orthopedic claims, the United States Court of Appeals for Veterans Claims (CAVC) in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court found that an examiner must describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. Thus, the CAVC's holding in Correia and Sharp establishes additional requirements that must be met prior to finding that a VA examination is adequate. These issues are therefore remanded as the record does not reflect that the Veteran has been afforded adequate VA examinations as discussed in Correia and Sharp. In his December 2020 Board hearing, the Veteran testified that he was receiving Social Security Administration (SSA) disability compensation. These outstanding and relevant records have not been associated with the claims file. A remand is required to allow VA to request these records. In addition, the Veteran has identified several private medical records which are not associated with the claims file. Specifically, the Veteran submitted limited treatment records from Lakeview Podiatry Associates and identified treatment records from Central Orthopedics. To accurately evaluate the Veteran's disabilities, the AOJ should obtain all outstanding treatment medical records identified by the Veteran. 6. Entitlement to service connection for traumatic brain injury is remanded. The Veteran contends that he suffered multiple symptoms as a result of a TBI he incurred during a vehicle rollover accident in service. In particular, the Veteran reports injuring his head when the tank that he was riding in left the roadway and rolled over onto its side. He reported dizziness, headaches, and balance issues as a result of the claimed injury. In this case, service treatment records reflect that the Veteran suffered from a low back injury and headaches during service, and the Veteran has provided credible testimony of an in-service injury that he argues is related to his current TBI residuals. A VA examination is needed to determine if the Veteran has current TBI residuals that are etiologically related to service. Additionally, in the December 2020 Board hearing, the Veteran testified that he had a scan, possibly a CT scan, of his brain following service. These records have not been associated with the claims file. The Board finds that a remand is necessary to obtain these records. 7. Entitlement to TDIU is remanded. Finally, because a decision on the remanded issues above could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the TDIU claim is required. The matters are REMANDED for the following action: 1. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for medical records from Central Orthopedics, Lakeview Podiatry Associates, and any other provider identified by the Veteran including the provider who conducted a CT scan of his brain. 3. Schedule the Veteran for a VA foot examination by an appropriate clinician to determine the current severity of the Veteran's service-connected residuals of Morton's Neuroma. Access to electronic record must be made available to the examiner for review. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his disability. 4. Schedule the Veteran for new VA examinations to ascertain the current severity and manifestations of his service-connected bilateral knee and lumbar spine disabilities, as well as neuropathic symptoms. Access to electronic record must be made available to the examiner for review. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing on both knees and ankles in the following areas: * Active motion; * Passive motion; * Weight-bearing; and * Nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. All opinions expressed by the examiner must be accompanied by a complete rationale, with citation to relevant medical findings. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. 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. Access to electronic record must be made available to the examiner for review. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his disability. 6. Thereafter, schedule the Veteran for a VA examination with a qualified examiner to determine the nature and etiology of the Veteran's claimed TBI condition. The updated claims folder must be made available for review. Following a review of the claims folder and examination of the Veteran, the examiner is requested to provide an opinion as to whether that the Veteran currently suffers from a TBI and, if so, whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's TBI was caused by or related to his period of service? A complete rationale, which includes citations to any relevant facts, evidence, or medical principles, must be provided. 7. After completing the above actions, and any other indicated development, the claims must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor 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.