Citation Nr: 21042182 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-23 306 DATE: July 12, 2021 REMANDED Entitlement to service connection for left foot disability, to include the first metatarsophalangeal (MTP) joint, is remanded. Entitlement to service connection for a neurological disorder, to include a traumatic brain injury (TBI), is remanded. REASONS FOR REMAND The Veteran served on active duty for a brief period in June 2001, and then from November 2001 to September 2005, which included service in Operation Iraqi Freedom. She had combat service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In January 2020, the Board denied the service connection claim for a left foot disability, and remanded the claims for service connection for PTSD, TBI, and back disability for VA examinations. The Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In the interim, a September 2020 rating decision granted service connection for PTSD and a November 2020 rating decision granted service connection for lumbosacral (back) strain; those awards are considered a complete grant of the benefits sought. A November 2020 supplemental statement of the case continued the denial for residuals of a TBI. In December 2020, the Veteran's representative and the VA General Counsel filed a Joint Motion for Partial Remand (JMPR), as the parties agreed a VA examination was warranted for the left foot disability as the evidence of record met the criteria under McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Court issued an order granting the JMPR in January 2021. The Court lacked jurisdiction to review the remanded claims. Left Foot Disability The Veteran asserts that she has a left foot disability that is related to her military service. As noted in the JMPR, the Board, in its January 2020 decision, did not express whether a VA examination was warranted with respect to the left foot claim. VA is obligated to provide an examination and obtain a medical opinion in an initial claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's service treatment records identify the presence of an in-service foot injury and treatment, including a left foot bunionectomy. Although the Veteran had not been diagnosed with a disability associated with her left foot, she did report pain in the foot, which she is competent to report. See also, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). On remand, the nature and etiology of the current foot pain should be determined by an examiner. Moreover, it is noted that at the time the Veteran underwent the left foot bunionectomy in service, there was evidence of early arthritis/degenerative joint disease of the left metatarsophalangeal joint; this finding strongly suggests that arthritis may still present in that toe. The Board therefore broadens the scope of the claim to include the 1st MTP in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Given the evidence of competent and credible reports of left foot pain and an in-service event, the duty to afford the Veteran a VA compensation examination is triggered to assist in determining the likely etiology of claimed foot disability. Residuals of TBI The Veteran contends that she has a neurological disability as a result of service. In her 2015 claim, she claimed a TBI, memory loss, and a neurological disability, which the RO apparently combined into one claim. See Mach 2016 rating decision. Based on the Veteran's claim, her statements, and her medical evidence, the Board broadens the scope of the TBI claim to service connection for a neurological disorder, to include a TBI, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). With regard to claimed TBI, she states she has a TBI as a result of a December 2003 "IED" attack; an August 2003 incident during which her vehicle was within the concussion zone of a bombing at a United Nations building; and a second" IED" attack. In conjunction with the January 2020 Board remand, the Veteran was provided a VA "TBI" examination in August 2020, and the examiner found the Veteran did not have a TBI and stated there were no residual effects therefrom. Additionally, a VA Central Nervous System and Neuromuscular Disease disability benefits questionnaire (DBQ) was completed in October 2020; therein, the examiner found that the Veteran did not have a central nervous system condition. However, the examiner did find several symptoms associated with a TBI, and noted under remarks "TBI memory loss, essential tremor, agitation, headaches, depression/anxiety." The Board notes further that the Veteran's post-service medical records refer to neuropsychiatric testing based upon complaints to include, memory loss, tremors, and agitation, and there is some question as to whether these complaints may be related to burn pit exposure in Iraq. As there is clearly a discrepancy as to whether the Veteran currently has a neurological disability, to include a TBI or residuals thereof, the Board must remand the claim to clarify the diagnosis and address whether the noted symptoms are related to service. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, provide the Veteran with a VA examination to help determine the likely etiology of the claimed left foot disability, to include the 1st MTP. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran the onset of her left foot pain, to include osteoarthritis and degenerative joint disease of the left MTP, and other symptoms and any resultant functional limitations. (b) Identify all left foot disabilities, to include left foot pain and osteoarthritis/degenerative joint disease of the left MTP, diagnosed since the date of claim. *Please note that early arthritis of the 1st MTP was noted on the in-service November 2004 operative report for left bunionectomy, and the Veteran has competently and credibly reported left foot pain since service. (b) For each left foot disability currently shown, to include, but not limited to, pain and any osteoarthritis/degenerative joint disease of the left 1st MTP, provide an opinion as whether it had its onset during service or is otherwise related to it. The standard of review is 50 percent probability or higher. **In answering these questions, the examiner is asked to address (i) the Veteran's left foot pain and treatment in service, including her severe left foot bunion with early osteoarthritis and degenerative joint disease of the left 1st MTP and the November 2004 bunionectomy, and (ii) lay statements regarding her current foot symptoms, including those within her March 2016 notice of disagreement. 3. Forward the Veteran's claim file to the examiner who provided the August 2020 medical opinion, if available, for the purpose of obtaining another medical opinion to help clarify the nature and etiology of claimed neurological disability, including a TBI, and/or residuals thereof. If the same examiner is unavailable, request an addendum opinion from an appropriately qualified VA clinician. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the claims file, the examiner is asked to respond to the following: (a) Clarify whether the Veteran has a neurological disability, including a TBI or residuals thereof. In doing so, reconcile, with supportive rationale, the finding of no TBI residuals in the August 2020 TBI DBQ with the October 2020 Central Nervous System and Neuromuscular Disease DBQ finding that the Veteran does have residuals of a TBI including memory loss, essential tremors, agitation, headaches, depression/anxiety. (b) If the examiner now determines that the Veteran currently (since the date of claim) has a neurological disability/ TBI, provide an opinion as to whether such disability is at least as likely as not (50 percent or higher probability) related to service, to include (i) the 2 separate IED attacks; (ii) being present in the concussion zone of the UN building bombing; and (iii) burn pit exposures in Iraq. **In doing so, address the Veteran's private treatment records from (1) Dr. S.T., including the June 2015 note that her symptoms could be related to exposures to toxins in Iraq and that she had several concussions in service; and, (2) Dr. Z.W. regarding her neurological testing and symptomatology, including the March 2016 record noting a history of essential tremor and cognitive changes and November 2016 record describing the results of cognitive testing and note that there was a question regarding the relation of her symptoms to her exposure to burn pits in service. A complete rationale should be provided for all opinions. (Continued on the next page) 4. Ensure that the requested opinions are fully answered by the examiner(s) and if not, please take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, Associate 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.