Citation Nr: 21032603 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 09-44 479 DATE: May 27, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to a compensable disability rating for residuals of the 3rd and 4th metatarsal (toes) fractures of the left foot 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 October 1976 to April 1977. He also had subsequent Reserves membership. This matter comes before the Board of Veterans' Appeals (Board) from a December 2007 and April 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In February 2016, the Board remanded the issues of entitlement to a compensable disability rating for the residuals of fractures of the third and fourth metatarsals in the left foot for issuance of a Statement of the Case. In May 2017, the Board remanded the issue of entitlement to service connection for a cervical spine disability to afford the Veteran a Board hearing. In December 2017, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. The Board remanded the issues on appeal for further development in January 2020, at which the issue of entitlement to service connection for a left knee disability was also remanded. Subsequently, in a December 2020 rating decision, service connection for left knee osteochondral defect (medial femoral condyle) and for left knee osteochondral defect (medial femoral condyle) with limitation of extension was granted effective June 12, 2013. This constitutes a full grant of the benefit sought on appeal and therefore, the issue of entitlement to service connection for a left knee disability is no longer appeal before the Board. 1. Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends that his currently diagnosed cervical spine disability is related to his service. Specifically, he performed several parachute jumps and had multiple falls while serving as a paratrooper during service and believes that could be the causative factor for his neck pain. In connection with this claim, the Veteran was provided a VA examination in March 2016. The examiner provided an opinion that even though the examination revealed a diagnosis of intervertebral disc syndrome (IVDS), a nexus has not been established. The examiner also stated that it is less likely than not that the Veteran's neck condition is secondarily service connected. The only explanation provided was that service treatment records show no record of treatment during active duty and the Veteran concurs that there is no documentation for a neck problem during service. The Board finds that this medical opinion is inadequate because the rationale for the unfavorable opinion was primarily that there is no documentation of treatment for neck condition in service. Specifically, the VA opinion is in direct conflict with the holding in Buchanan v. Nicholson, 451 F.3d at 1336-37 (holding that although "the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."); also see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate); see also Stegall v. West, 11 Vet. App. 268 (1998). The VA examiner appears to discount the credibility of the Veteran's "self-reported" symptoms and neglects to consider the Veteran's statements concerning symptoms experienced in service and continued after service. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, the VA examiner could have addressed whether the Veteran's claimed symptoms were consistent with his complaints through the years, or whether the complaints are consistent with the current disorder. Instead, the examiner determined, incorrectly, that lack of a diagnosis in the treatment records are the only evidence which can provide the basis for an opinion concerning etiology. Given the deficiencies in the March 2016 VA examination report the Board must remand this case for another medical opinion. 2. Entitlement to a compensable rating for residuals of the 3rd and 4th metatarsal (toes) fractures of the left foot is remanded. The Veteran was afforded a VA examination in July 2014 addressing his left third and fourth metatarsal fracture residuals. The diagnoses were bilateral flat foot, bilateral hallux valgus and posttraumatic arthropathy of the left foot. The Veteran reported symptoms of pain and swelling. On clinical examination, there was pain on movement, pain on weight-bearing, and pain on non weight-bearing on both feet and swelling on use and extreme tenderness of plantar surfaces on the left foot. The examiner indicated that the functional impact of each condition was difficulty standing/walking for long periods of time. During a more recent VA examination in August 2020, the Veteran continued to report recurrent intermittent left foot pain. The diagnoses were flat foot, hallux valgus, residuals of fifth metatarsal fracture, and subchondral bone cyst in the 1st metatarsal bonea precursor to osteoarthritis or other type of arthritis. The examiner noted functional loss of difficulty performing tasks requiring prolonged standing, walking, climbing inclines, and running. The examiner indicated that contributing factors of disability were interference with standing and lack of endurance; however, there was no other functional loss during flare-ups or when the foot is used repeatedly over a period of time. As to the functional impact of the disability on the Veteran's ability to work, the examiner noted that although the Veteran was retired and currently unemployed, he would lose work time of 0 to 1 week in 12 months and that status post 5th toe metatarsal fracture, flat feet, hallux valgus of the left and subchondral bone cysts caused difficulty performing tasks requiring prolonged standing, walking, climbing inclines and running. However, the medical evidence of record shows multiple left foot diagnoses, and it is unclear from the record whether all the Veteran's reported symptoms are attributable to his service-connected left foot disability. These symptoms and conditions of the left foot must be addressed upon remand examination, and the examiner must identify which, if any, are attributable to the Veteran's left third and fourth metatarsal fracture residuals. 3. Entitlement to a TDIU is remanded. A determination with respect to the service connection and increased rating claims may have an impact upon consideration of the issue of entitlement to a TDIU rating on appeal; the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. As such, Board consideration of the merits of the Veteran's TDIU claim is deferred pending adjudication of the Veteran's service connection and increased rating claims being remanded herein. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records for the Veteran from the VA Medical Center in Dublin, Georgia, and all associated outpatient clinics, dated from April 2020 to the present. All requests, responses, and records received should be documented in the claims file. 2. Obtain a medical opinion from a VA examiner with the appropriate expertise to determine the nature and etiology of the Veteran's currently diagnosed cervical spine disability. If necessary, schedule the Veteran for a VA examination. A copy of this Remand and the entire claims file must be made available to and reviewed by the VA examiner. Pertinent documents should be reviewed, including service treatment records and the Veteran's statements. The examiner should then offer an opinion as to whether the Veteran's current cervical spine disability is at least as likely as not (i.e. 50 percent probability or more) etiologically related to her period of active military service, to include the reported symptoms in service. In rendering the opinion, the examiner is asked to fully consider the Veteran's lay statements regarding the onset and symptoms of the claimed disability. A complete rationale must be provided for all opinions expressed. 3. Thereafter, obtain an addendum opinion from the VA examiner who conducted the VA Foot Conditions examination in August 2020, to determine the nature and severity of his residuals of left foot third and fourth metacarpal fractures. The claims file must be made available to the examiner in conjunction with the examination. Due to the several, potentially overlapping symptoms for disabilities of the left foot, examination should be conducted by an appropriate specialist or specialists capable of addressing distinguishable extents of symptoms and impairments attributable the disabilities the subject of examination. The examiner should be advised that this examination is necessitated by failure of the August 2020 examiner to distinguish, to the extent possible (or to provide an explanation why this is not possible), symptoms and impaired functioning due to the Veteran's service-connected left foot disability (3rd and 4th metatarsal fractures residuals), from symptoms and impaired functioning due to non-service-connected left foot disabilities. The examiner should identify all symptoms and functional impairment related to the Veteran's service-connected left third and fourth metacarpal fracture residuals and describe the nature, extent, and severity of those symptoms. In doing so, the examiner must specifically address which, if any, of the Veteran's left foot conditions should be considered the part of the service-connected residuals of left 3rd and 4th metatarsal fractures, or are they distinct and distinguishable conditions in their symptoms and impacts on functioning. (Continued on the next page) If an addendum cannot be obtained without a new examination, arrangements should be undertaken to obtain a new examination. 4. After completing the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.