Citation Nr: 21039903 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-48 093 DATE: July 1, 2021 REMANDED Entitlement to a compensable rating for residuals, fracture left proximal fibula with minimal deformity is remanded. Entitlement to service connection for a left leg disability as secondary to residuals, fracture left proximal fibula with minimal deformity is remanded. Entitlement to service connection for a respiratory disability to include chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for diabetes to include as caused or aggravated by service- connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1967 to November 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran raised the issue of service connection for his back in his July 2018 Notice of Disagreement. The Veteran is advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. The Board notes that the Veteran appointed L. H. as his representative. L. H. is not accredited by VA to act as a valid, recognized representative with authority to act on behalf of the Veteran. The Veteran was so informed in May 2021 and advised he could select a Veterans Service Organization or an accredited attorney or agent to represent him. The letter indicated that if there was no response within 30 days, the Board would assume the Veteran wished to represent himself. Therefore, the Board recognizes the Veteran as proceeding without representation in his appeal. Because the evidence indicates that the Veteran may have different conditions or diagnoses for ¬¬¬his claims, the Board is expanding the scope of the claim to encompass any diagnosis raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Entitlement to a compensable rating for residuals, fracture left proximal fibula with minimal deformity is remanded. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). The Veteran's residuals of stress fracture, left tibia, is rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5262 for impairment of the tibial and fibula. However, effective February 7, 2021, the rating criteria under this code were revised. The RO has not considered the revised regulations; therefore, this issue must be remanded to avoid prejudice to the Veteran. The Board has determined that the Veteran receive a new VA examination addressing the disability under both the old and the new criteria. Ongoing medical records should also be obtained. 2. Entitlement to service connection for a left leg disability as secondary to residuals, fracture left proximal fibula with minimal deformity is remanded. The Veteran asserts he has symptoms of pain, cramps, numbness, and swelling that he attributes to his residuals of the left fibula. The record reflects the Veteran has cardiac and vascular disorders such as coronary artery disease and peripheral vascular disease. He also asserts his left leg is 12 inch shorter than the right leg due to the fracture. In addition, he reports knee symptoms that he believes are related such as his knee bending backwards. A February 2018 VA examiner raised the possibility that any additional orthopedic or lower extremity circulation disability may be related to the service- connected residuals of the left fibula fracture. VA must recognize, develop, and adjudicate entitlement to secondary service connection for conditions which the evidence indicates may be caused or aggravated by the primary condition being rated. 38 C.F.R. § 3.155 (d)(2); Bailey v. Wilkie, 33 Vet. App. 188 (2021) (VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability). In addition, he is already service connected for left ankle arthritis which may be contributing to his current complaints. Therefore, the Board has determined that a VA examination is required to address the symptoms and functional limitations that form the basis of the Veteran's claim for a compensable rating for the left fibula fracture. The VA examiner should determine all left lower extremity symptoms and limitation of functions and address whether any such symptom or impairment is related to the left fibula fracture. If any symptom or functional limitation is not due to the left fibula fracture but another disability, the VA examiner should determine whether the left fibula fracture caused or aggravated the other left leg disorder. 38 C.F.R. § 3.310. 3. Entitlement to service connection for a respiratory disability to include chronic obstructive pulmonary disease (COPD) is remanded. The Veteran has been diagnosed with COPD at least since February 2011. It also appears the disorder has been referred to as emphysema. The Veteran asserts that when he was hospitalized for his left fibula fracture, he developed and received treatment for tuberculosis. He now asserts his respiratory disorder is the result of the tuberculosis and treatment. There has not been a VA examination to determine whether the Veteran's respiratory disability is related to incidents noted in the service treatment records or service generally. Once the records development is completed, a VA medical examination and accompanying medical opinion is needed to ascertain whether the disabilities are present and to ascertain the relationship to service. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). 4. Entitlement to service connection for diabetes to include as caused or aggravated by service- connected disabilities is remanded. The Veteran has been diagnosed with diabetes since December 2004. He asserts the diabetes is caused by stress from his service- connected disabilities such as the left fibula fracture and also his current claim for COPD. Once again, there has not been a VA examination to determine if the Veteran's diabetes, McLendon, supra, or caused or aggravated by any other disability, including medication. 38 C.F.R. § 3.310. A VA examination is required to assist the Board in resolving this claim. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA ¬¬¬leg examination to determine the current symptoms, level of severity, and functional impairment associated with his residuals, fracture left proximal fibula. The claims file should be reviewed by the examiner. The examiner shall address the current severity for this disability residuals of fracture, left fibula, under both the old and new, revised Diagnosed Code 5262 (effective February 7, 2021). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. If it is not possible to specifically estimate a lower extremity joint range of motion during flare-up and after repetitive use over time without speculation, the examiner is asked to opine as to whether during these conditions result in range of motion of the knee flexion limited to 45 degrees or extension limited to 10 degrees; or ankle is limited to 15 degrees dorsiflexion or 30 degrees plantar flexion. If motion would be greater than this, that should be stated. The VA examiner must address whether any current left knee is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected left fibula fractures, to include as any orthopedic disability or any cardiac or vascular disorder of record such as peripheral vascular disease. The VA examiner is advised that the Veteran is already service connected for left ankle arthritis and need only discuss the current severity of the left ankle under both the old and new criteria for Diagnostic Code 5271 (ankle, limited motion of). The examiner must also evaluate and address whether the Veteran's left leg is shorter than the right leg and whether this difference causes any functional impairment. See 38 C.F.R. § 4.71a, Diagnostic Code 5275 which has remained unchanged by the recent changes to the Diagnostic Codes. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. If this cannot be accomplished without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and explain why that is the case. 3. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the respiratory system onset during service or is otherwise related to an in-service injury, event, or disease, to include tuberculosis, asbestosis, or radiation. In offering the opinion, the examiner is asked to consider and discuss all respiratory diagnoses of record including COPD and emphysema. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 4. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that diabetes had its onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether diabetes is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected disability or COPD, to include as a result of medications prescribed to alleviate the service connected disability or COPD. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.