Citation Nr: 0006981 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-09 799 ) DATE ) ) From the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for bilateral pes planus with hallux valgus, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for residuals of a right ankle fracture, currently evaluated as 30 percent disabling. 3. Entitlement to an increased rating for residuals of the dislocation of the right great toe, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for laxity of the right knee ligaments, currently evaluated as 10 percent disabling. 5. Entitlement to service connection for residuals of a left knee injury. 6. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. 7. Entitlement to service connection for depression, to include as secondary to his service-connected disabilities. 8. Entitlement to automobile and adaptive equipment or adaptive equipment only. REPRESENTATION Appellant represented by: To be clarified ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from December 1974 to December 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in New York, New York, and Roanoke, Virginia. In a December 1996 rating action, the RO denied the veteran's claims for increased ratings for his service-connected bilateral pes planus with hallux valgus (bilateral foot disability), residuals of a right ankle fracture (right ankle disability), residuals of the dislocation of the right great toe (right great toe disability), laxity of the right knee ligaments (right knee disability) and to service connection for residuals of a left knee injury (left knee disability). Thereafter, in a March 1998 rating decision, the RO denied his claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The veteran timely appealed each of these determinations to the Board. The veteran subsequently relocated to Virginia Beach, Virginia, and his claims folder was transferred to the Roanoke, Virginia, RO. Thereafter, in a September 1998 rating action, the RO denied his claims for service connection for depression, to include as claimed as secondary to his service-connected disabilities, and to automobile and adaptive equipment or adaptive equipment only. The veteran has also timely appealed these determinations to the Board. In the September 1998 rating action, the RO also increased the evaluations of the veteran's right ankle and right knee disabilities to 30 percent and 10 percent, respectively, effective September 11, 1996. However, inasmuch as higher evaluations for both disabilities are potentially available, and the veteran is presumed to seek the maximum available benefit for a disability, the veteran's claims for increased ratings remain viable on appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). As a final preliminary point, the Board notes that, in October 1999, the veteran submitted a motion to have his appeal advanced on the Board's docket. In a decision dated in November 1999, the Board denied this request. REMAND The Board has carefully reviewed the claims file and unfortunately finds that, for varying reasons, each of the claims must be remanded for additional development and adjudication. In support of his increased rating claims, the veteran has challenged the adequacy of the VA examinations on the basis that the examiners did not review his pertinent medical records prior to the preparation of the reports. In this regard, the Board observes that the physician who conducted the July 1998 VA examination, which was apparently done on a fee basis, specifically indicated that none of the veteran's medical records were available for his review. In addition, citing DeLuca v. Brown, 8 Vet. App. 202 (1995), the veteran argues that, in adjudicating his increased rating claims, VA should have considered the application of 38 C.F.R. § 4.40 (1999) regarding functional loss due to pain and 38 C.F.R. § 4.45 (1999) regarding weakness, fatigability, incoordination, or pain on movement of a joint. A review of the claims folder does not reflect that those provisions were specifically considered in the instant case. The veteran also asserts that higher evaluations, on an extra-schedular basis, are warranted. However, to date, VA has not addressed this contention; hence, on remand, the RO specifically consider whether the record warrants referral of this matter to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service for assignment of higher ratings on an extra-schedular basis. Further, in several statements, the veteran indicated that he received regular treatment for various disabilities at the Northport, New York, VA Medical Center (Northport VAMC). However, during the course of this appeal, VA has not attempted to obtain and associate records of this treatment from that facility. In addition, although the claims folder reflects that the veteran is currently receiving regular treatment at the Hampton, Virginia, VAMC (Hampton VAMC), with the exception of some August 1999 records from this facility, including two reports prepared by his treating physicians, which were among the records recently submitted by the veteran directly to the Board, the records of his treatment at the latter VAMC are outstanding. In this regard, in the August 1999 reports, two different VA physicians indicated that they were each treating the veteran for various medical conditions. The Board notes that this is significant, because records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466- 67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, all outstanding VA (and any other indicated) treatment records should be obtained and associated with the claims file. In addition, although the claims folder reflects that the veteran has been awarded disability benefits from the Social Security Administration (SSA), it does not appear that VA has attempted to obtain and associate these records with the claims folder. The RO must obtain these treatment records because they might contain diagnostic studies and other conclusions that might be determinative in the disposition of these claims. In light of the foregoing, the Board finds that, after all outstanding treatment records are associated with the claims file, a contemporaneous and thorough VA examination (that takes into account the records of the veteran's prior medical history, and especially the medical evidence discussed above), is required to clarify the nature and extent of the veteran's service-connected disabilities. See Colayang v. West, 12 Vet. App. 524, 532 (1999); Goss v. Brown, 9 Vet. App. 109, 114 (1996). In addition, the Board observes that, with regard to the veteran's bilateral foot disability, bilateral pes planus with hallux valgus, it has been evaluated as 30 percent disabling since December 13, 1979. On remand, the RO should consider whether this condition should more appropriately be evaluated as two separate disabilities, and if so, whether the appropriate evaluation to be assigned for each. Further, with regard to his TDIU claim, the Board notes that, although the July 1998 fee-basis examination report, the two August 1999 reports prepared by the veteran's treating VA physicians, and the October 1999 private medical report, which was submitted directly to the Board that same month, all indicate that the veteran is unable to work due to his various health conditions, no physician has specifically offered an opinion with respect to whether he is unemployable due solely as a consequence of his service-connected disabilities, i.e., without regard to the existence or extent of nonservice-connected disabilities. Indeed, the record shows that the veteran has significant nonservice-connected disabilities, including cardiovascular and respiratory disabilities, as well as diabetes mellitus. In this regard, the Board observes that one of the veteran's private physicians, one of his regular treating VA physicians, as well as the SSA have cited to nonservice- connected conditions in support of their conclusions that he is unable to work. However, the duty to assist requires that the examination report include an opinion concerning the effects of the veteran's service-connected disabilities, either individually or in the aggregate, on his ability to obtain or retain employment. See Colayang v. West, 12 Vet. App. at 538-40; Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In addition, although as noted above it appears that the veteran also suffers from significantly disabling nonservice-connected disabilities, the existence or extent of such disabilities is to be disregarded where the service- connected disabilities meet the percentage thresholds identified in the first part of 38 C.F.R. § 4.16(a) (1999). Further, with respect to his service connection claims, the Board emphasizes that, if the evidence described above does not support the veteran's claims for service connection for left knee disability and for depression, the duty to inform requires that the RO advise him of the evidence needed to do so. See 38 U.S.C.A. § 5103(a) (1999); Robinette v. Brown, 8 Vet. App. 69 (1995). In addition, with respect to the claim of entitlement to automobile and adaptive equipment or adaptive equipment only, the Board notes that, because development obtained in conjunction with the adjudication of the veteran's increased rating claims will bear on the resolution of this claim, a Board decision at this time would be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). As a final point, the Board observes that the veteran's claims folder was transferred to the Board in March 1999. Thereafter, in August 1999 motion to the Board, the veteran's attorney, R. Edward Bates, petitioned to withdraw as the veteran's representative in this matter. In addition, in an August 1999 letter, his attorney informed the veteran that his firm had terminated him as a client. In a signed form, dated later that same month, the veteran apparently indicated that he had agreed to be represented by the Virginia Department of Veteran's Affairs. However, to date, the claims folder does not reflect that the veteran has completed the appropriate VA form indicating that he has selected that organization to represent him in this appeal, and indeed, in correspondence dated subsequent to August 1999, the Virginia Department of Veteran's Affairs has not been sent copies of pertinent communications. Further, in November 1999, the veteran filed a motion with the Board to revoke the power of attorney in favor of R. Edward Bates, and in January 2000, the Board granted this request. Finally, in a separate February 2000 determination, the Board granted R. Edward Bates' motion to withdraw as the veterans' representative. As such, on remand, the RO should have the veteran clarify his representation in this appeal. As a final matter, the Board also notes that after the claims file was transferred to the Board in March 1999, the veteran filed additional evidence with the Board in September 1999 and October 1999. Although the evidence submitted in September 1999 was accompanied by a waiver of RO jurisdiction, the evidence was submitted outside of the 90- day period prescribed in 38 C.F.R. § 20.1304(a) (1999), and was not accompanied by a motion showing good cause for the delay. See 38 C.F.R. § 20.2304(b),(c). Neither a waiver of RO jurisdiction nor a motion to show good cause accompanied the statement filed with the Board in October 1999. Hence, the criteria for acceptance of such additional evidence by the Board have not been met. However, inasmuch as the issues on appeal are being remanded for other reasons, the Board finds that the most efficient means of handling such evidence is to request that the RO consider such evidence, in the first instance, in adjudicating the claims for benefits. For all the foregoing reasons, the Board hereby REMANDS these matters to the RO for the following actions: 1. If it has not already done so, RO should contact the veteran and provide him with the appropriate form upon which to clarify his representation in this matter. 2. The RO should obtain and associate with the claims file all outstanding records of treatment relating to the veteran. This should specifically include any outstanding records from the Northport and Hampton VAMCs, dated since September 1995; from the Brooklyn Hospital Center, in Brooklyn, New York, dated since September 1995; and all other records from any facility or source identified by the veteran. The aid of the veteran and his representative, once established, in securing such records, to include providing necessary authorizations, should be enlisted, as needed. However, if any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 3. The RO should request, directly from the SSA, complete copies of any disability determination(s) it has made concerning the veteran and copies of the medical records that served as the basis for any such decision(s). 4. After completion of the actions requested above, the RO should arrange for the veteran to undergo a VA orthopedic examination to determine the current nature and extent of his service- connected bilateral pes planus with hallux valgus, as well as his right ankle, right great toe and right knee disabilities. It is imperative that the physician who is designated to examine the veteran reviews all pertinent evidence in his claims folder, including a complete copy of this REMAND. All appropriate tests and studies, including X-rays and range of motion studies, should be conducted, and all clinical findings should reported in detail. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with his feet and/or right ankle, right great toe and right knee disabilities. The physician also should indicate whether, and to what extent, the veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups. To the extent possible, the examiner should express such functional loss in terms of additional degrees of motion loss. In addition, with respect to his service- connected bilateral foot disability, the examiner should offer an opinion as to whether the veteran's bilateral pes planus and hallux valgus constitute two separate disabilities; and, if so, he should, to the extent possible, differentiate the symptoms attributable to each. The physician must provide an assessment of the severity of the veteran's service- connected orthopedic disabilities, to include comments as to the extent to which these disabilities impair the veteran's employability. The examiner also should specifically offer an opinion as to whether, without regard to the veteran's age or the impact of nonservice-connected disabilities, it is at least as likely as not that the veteran's service-connected disabilities render him unable to obtain or retain substantially gainful employment. If the examiner is unable to provide any of the requested information with any degree of medical certainty, the examiner should clearly so state. All examination findings, along with the complete rationale for all opinions expressed and conclusions reached, should be set forth in a typewritten report. 5. If none of the requested development yields a medical opinion as to a relationship between any of the veteran's left knee disability and/or depression and his period of military service, or with respect to a relationship between the latter disability and his other service-connected disabilities, the RO should specifically advise him of the need to submit such competent medical evidence to support the claims. 6. To help avoid future remand, the RO should ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completion of the above development (and after undertaking any additional development deemed warranted by the record), the RO should adjudicate the claims on appeal on the basis of all pertinent evidence of record (to include all evidence associated with the claims file since the December 1998 Supplemental Statement of the Case), and all pertinent legal authority. In adjudicating his increased rating claims, the RO should take into consideration any functional loss due to pain and pain on movement, weakness, fatigability, and incoordination (consistent with the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 (1999) and DeLuca v. Brown, 8 Vet. App. 202 (1995)). In addition, with respect to his bilateral foot disability claim, the RO should consider whether separate evaluations are warranted for his bilateral pes planus and hallux valgus; and, if so, the appropriate evaluations to be assigned to each. Further, in considering the veteran's claim for an increased rating for his right knee disability, the RO should address whether separate evaluations for arthritis and instability are warranted (consistent with VAOPGCPREC 23-97 (1997), and VAOPGCPREC 9-98 (1998)). The RO must also specifically address whether any increased rating claim warrants referral to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service, for assignment of a higher rating on an extra-schedular basis. The RO should also adjudicate the veteran's service connection claims, specifically consider whether each is well grounded. In addition, if service connection is granted for either left knee disability or for depression, the RO should assign a disability evaluation(s) for that condition(s). Further, in light of the above development, the RO should again consider the veteran's entitlement to automobile and adaptive equipment or adaptive equipment only. Thereafter, if it has not been rendered moot, (see Green v. West, 11 Vet. App. 472, 476 (1998), citing Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994) and VAOPGCPREC 6-99)), the RO should adjudicate the veteran's claim of entitlement to a TDIU. The RO should provide adequate reasons and bases for its determinations, citing to all governing legal authority and precedent, and addressing all issues and concerns that are noted in this REMAND. 9. If any benefits sought by the veteran are not granted to his satisfaction, he and his representative, once confirmed, must be furnished a Supplemental Statement of the Case and given an opportunity to submit written or other argument in response before the case is returned to the Board for further appellate consideration. The purpose of this REMAND is to accomplish additional development and adjudication and to ensure that all due process requirements are met; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The parties need take no action until otherwise notified, but they may furnish additional evidence within the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the RO to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JACQUELINE E. MONROE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).