Citation Nr: 22017157 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-21 292 DATE: March 24, 2022 REMANDED Entitlement to service connection for sleep disability, as secondary to service-connected cold weather injury of the right and left foot, is remanded. Entitlement to a rating in excess of 20 percent for cold weather injury of the right foot is remanded. Entitlement to a rating in excess of 20 percent for cold weather injury of the left foot is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1985 to July 1988. These matters come before the Board of Veterans' Appeals (Board) from an April 2017 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2021 hearing, and a transcript of the hearing is associated with his claims file. As for characterization of the issues on appeal, the evidence reflects that the Veteran has been unemployed during the claim period and that he has contended that his service-connected disabilities have contributed to his inability to secure and follow substantially gainful employment. A formal claim for a TDIU (VA Form 21-8940) was submitted in December 2016. Entitlement to a TDIU may be an element of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. at 453. Given the evidence of current disabilities, the Veteran's claim for the highest ratings possible for his service-connected cold weather injury of the right and left foot, and the evidence of unemployability, the issue of entitlement to a TDIU is properly before the Board as part and parcel of the Veteran's claim for increased ratings for cold weather injury of the right and left foot. Lastly, the Veteran has reported that he experiences difficulty sleeping caused by the symptoms associated with his service-connected cold weather injury of the right and left foot. Consistent with VA's duty to maximize benefits, the Board must consider all possible schedular bases for separate ratings, including secondary service connection, before considering whether an extraschedular rating is warranted to address symptoms not contemplated by the applicable diagnostic code. Morgan v. Wilkie, 31 Vet. App. 162, 167 (2018). In this regard, 38 C.F.R. § 3.155 (d)(2) requires that, when entitlement to secondary service connection is raised, a formal claim for secondary service connection need not be filed, rather, VA must consider those "complications" in connection with the claim on appeal. Bailey v. Wilkie, 33 Vet. App. 188 (2021). Therefore, the Board has expanded the appeal to include the issue of entitlement to service connection for sleep disability, as secondary to service-connected cold weather injury of the right and left foot. 1. Entitlement to service connection for sleep disability, as secondary to service-connected cold weather injury of the right and left foot, is remanded. As the evidence reflects that the Veteran has sleep disability or symptoms of sleep disability that may be associated with his service-connected cold weather injury of the right and left foot, a remand is warranted to afford the Veteran an examination to determine the nature and severity of any such disability and to obtain a medical opinion as to whether any such disability is caused or aggravated by his service-connected cold weather injury of the right and left foot. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Omaha Vista electronic records system (dated to April 2018) and the St. Cloud Vista electronic records system (dated to October 2016). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance); see also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to ratings in excess of 20 percent for cold weather injury of the right and left foot are remanded. The evidence reflects that the Veteran's service-connected cold weather injury of the right and left foot may have worsened since he was last examined by VA in November 2016. For instance, the November 2016 examination report indicates that the Veteran experienced arthralgia/other pain, cold sensitivity, and nail abnormalities associated with his service-connected cold weather injury of the right and left foot. Also, the examiner who conducted the November 2016 examination reported that the Veteran's foot disabilities did not impact his ability to work. However, during the November 2021 hearing, the Veteran reported that he experienced additional symptoms not reported during the November 2016 examination, that his disabilities had worsened during the previous 5 years, and that his foot disabilities contributed to his inability to work. In light of this information, the Veteran should be provided an opportunity to report for a new VA examination to ascertain the current severity and manifestations of his service-connected cold weather injury of the right and left foot. Also, all outstanding VA treatment records should be secured upon remand. 3. Entitlement to a TDIU due to service-connected disabilities is remanded. Since a decision on the remanded issues of entitlement to increased ratings for cold weather injury of the right and left foot could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. Also, the claim period for the Veteran's TDIU claim dates back to the July 21, 2016 receipt of his claim for increased ratings for the service-connected cold weather injury of the right and left foot. Since July 21, 2016, the Veteran has been in receipt of service connection for the following disabilities: cold weather injury of the right foot, rated 20 percent disabling; cold weather injury of the left foot, rated 20 percent disabling; and fracture, distal nasal bone, rated noncompensable. Therefore, the percentage ratings for the Veteran's service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a) at any time during the claim period. VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations, but the Board is prohibited from assigning a TDIU on this basis in the first instance without ensuring that the claim is referred to VA's Director of Compensation (Director) for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Given the low standard for referral set forth in Ray, the Board finds that the evidence reflects that the Veteran has met this standard. Therefore, if, after the agency of original jurisdiction (AOJ) readjudicates the issues of entitlement to increased ratings for cold weather injury of the right and left foot, there is any period since July 21, 2016 that the percentage ratings for the Veteran's service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a), the AOJ should refer the TDIU issue on appeal to the Director for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16 (b) during that period. Lastly, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for foot disability and sleep disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for foot disability and sleep disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's outstanding VA treatment records from the Omaha Vista electronic records system for the period since April 2018; the St. Cloud Vista electronic records system for the period since October 2016; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cold weather injury of the right and left foot. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. Based on any examination findings and the Veteran's documented medical history and lay assertions, the examiner should also identify any functional impairments due to the service-connected cold weather injury of the right and left foot, alone, and discuss the effects of these disabilities on any occupational functioning and activities of daily living. The examiner must provide reasons for any opinion given. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any current sleep disability and to obtain a medical opinion as to whether any such disability is associated with his service-connected cold weather injury of the right and left foot. The examiner must opine whether there is an approximately 50 percent chance, or greater, that any sleep disability or symptom(s) experienced by the Veteran since approximately July 2016 (1) is caused by service-connected cold weather injury of the right and left foot (to include pain associated with these disabilities); OR (2) is aggravated by service-connected cold weather injury of the right and left foot (to include pain associated with these disabilities). The examiner must provide reasons for each opinion given. 5. If, after the AOJ readjudicates the issues of entitlement to increased ratings for cold weather injury of the right and left foot, the percentage ratings for the Veteran's service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16 (a) for any period(s) since July 21, 2016, refer the case to VA's Director of Compensation for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16 (b) during any such period(s). The Director (or his designee) should issue a memorandum addressing whether a TDIU is warranted under 38 C.F.R. § 4.16 (b) at any pertinent point since July 21, 2016. The memorandum should clearly provide a summary of the facts and law that were relied upon in making the decision and should include an explanation of the reasons and bases for the decision. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.