Citation Nr: 1423167 Decision Date: 05/21/14 Archive Date: 05/29/14 DOCKET NO. 07-39 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to ratings for bilateral pes planus in excess of 10 percent prior to June 26, 2008, and/or in excess of 30 percent from that date. 2. Entitlement to a total disability rating for based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran, who served on active duty from October 1973 to October 1975 and from January 1976 to August 1979. This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied a rating in excess of 10 percent for bilateral pes planus. The claims file was then transferred to the jurisdiction of the Salt Lake City, Utah RO, as the Veteran had relocated to that state. In August 2011, the Board remanded the case to the RO for additional development. In April 2013, the Board in pertinent part granted a 30 percent rating for the bilateral pes planus, effective June 26, 2008, and remanded the issue of entitlement to a TDIU rating upon finding that such issue was raised by the record. The Veteran appealed the Board's April 2013 decision in part, as to the ratings for bilateral pes planus (and not as to the ratings for right and left foot degenerative joint disease (DJD), also decided at that time) to the United States Court of Appeals for Veterans Claims (Court). In December 2013, the parties - the Veteran and the legal representative of the VA, the Office of the General Counsel - filed a Joint Motion for Partial Remand to vacate the Board's decision insofar as the bilateral pes planus claim is concerned, and remand the case to the Board. The Court in December 2013 granted the Joint Motion and dismissed the claims for a higher rating for right and left foot DJD. In February 2014, the Veteran's representative submitted (with a waiver of RO initial consideration) additional argument and evidence in the form of a private vocational assessment report dated in February 2014. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the Joint Motion for Partial Remand, dated in December 2013, the parties noted that the Board in its April 2013 decision (a) did not address the potential application of the rating criteria contained in 38 C.F.R. § 4.71a, Diagnostic Code 5284, for (other) foot injuries, when evaluating the Veteran's service-connected bilateral pes planus, and (b) did not provide adequate reasons for finding that referral of the Veteran's case for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) was not warranted. The parties observed that on the most recent VA pes planus examination in September 2011, the diagnoses included bilateral heel spurs, bilateral hallux valgus with DJD of the first metatarsal phalangeal joint, and bilateral gastroc equinus, which the examiner stated were pertinent, or related, to the Veteran's service-connected flatfeet condition. Some of these additional diagnoses do not have a diagnostic code under which to evaluate them, which raised the question of whether they may properly be evaluated under the non-specific "catchall" code of Diagnostic Code 5284. Then, after discussing the Veteran's pes planus in relation to the rating criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5276, for flatfeet, the examiner remarked that other findings or symptoms related to the conditions listed in the diagnosis section included hyperesthesia/hypoesthesia of the feet and toes, bilateral plantar fasciitis, and flexible but painful forefeet, mid-feet, and hindfeet. Further, on VA miscellaneous foot (other than pes planus) examination in September 2011, the diagnoses were bilateral hallux valgus, possible Morton's neuroma (diagnosis not confirmed), calcaneal spur, metatarsalgia, paresthesia/hypoesthesia bilaterally (etiology undetermined), DJD of the first metatarsophalangeal joints bilaterally, and gastroc equinus. Other than describing the severity of the hallux valgus, there is little if any description of the nature and severity of the other foot/ankle conditions which have been related to the pes planus. In a February 2007 VA outpatient record, for example, the diagnosis was severe gastroc equinus bilaterally (treated with orthotics), but the VA examiner in September 2011 did not indicate the severity of the condition. As for Morton's neuroma, a VA examiner in June 2008 stated that there was a "positive Morton neuroma sign" with pain radiating into the toes on the right, but the September 2011 examiner did not confirm the presence of Morton's neuroma or indicate whether hyperesthesia/hypoesthesia of the feet and toes is attributable to it. In sum, the Veteran's service-connected bilateral pes planus presents a complex disability picture, particularly as it has apparently given rise to other foot and ankle conditions that may or may not be rated separately under diagnostic codes other than Code 5276 (and/or separately from the already service-connected right and left foot DJD). Before the September 2011 VA examinations, medical evidence showed such diagnoses as bilateral hallux valgus, plantar fasciitis, and gastroc equinus, along with a diagnosis of pes planus, but the September 2011 examiner appears to relate such pathology directly to the pes planus. As argued by the Veteran's representative in February 2014, each of the additional, related disabilities must be evaluated under applicable criteria for that condition and separate ratings should be considered. In view of the foregoing, another VA examination to obtain a full description of all pathology, symptoms, and impairment attributable to the Veteran's pes planus (and if indicated distinguish pathology, symptoms, and functional impairment attributable wholly to service-connected right and left foot DJD, or any other co-existing and unrelated foot disability entities found). As evaluating the same symptoms under separate diagnostic codes is prohibited (see 38 C.F.R. § 4.14), it is imperative that an examiner provide a precise description of each condition related to the pes planus. Regarding the TDIU issue, the Veteran continues to maintain that his bilateral foot disabilities prevent him from participating in gainful employment. A TDIU claim is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, entitlement to TDIU was denied by the RO in a November 2013 decision and has not as yet been appealed. However, in February 2014 the Veteran's representative submitted a vocational assessment report wherein a "vocational consultant" concluded with a "reasonable degree of vocational certainty" that the Veteran's lower extremity disabilities and his lack of skills transferable to the sedentary level "has resulted in his inability to secure or follow a substantially gainful occupation" since his termination from the postal service in September 2008. Therefore, the issue of entitlement to a TDIU rating has been reasonably raised by the record since it was last adjudicated and is considered part of the increased rating claim on appeal. The "vocational consultant" did not explain why a person with an associate's degree in liberal arts lacks skills to engage in any regular substantially gainful sedentary employment, and the medical record does not include a VA opinion as to whether the Veteran's service-connected foot disabilities render him unemployable. Such opinion must be obtained. Accordingly, the case is REMANDED for the following: 1. Arrange for the Veteran to be scheduled for a VA examination to determine the nature and severity of his service-connected bilateral pes planus and all pathology and symptoms associated with the pes planus. The entire record must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be conducted. Regarding pes planus, the examiner should indicate whether or not there is objective evidence of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and any improvement by orthopedic shoes or appliances. The examiner should specifically identify all foot/ankle pathology, symptoms, and associated impairment of function related to the pes planus (discussing specifically the following which were noted on the September 2011 examination): hallux valgus, heel spurs, gastroc equinus, plantar fasciitis, metatarsalgia, and Morton's neuroma. With respect to each diagnosed condition, the examiner should describe all symptoms, the particular location of those symptoms, and the severity of the symptoms. For example, the examiner should indicate whether or not any hallux valgus is severe (equivalent to amputation of the great toe), and whether or not any gastroc equinus is productive of muscle impairment (and if so, noting whether such is slight, moderate, moderately severe, or severe). The examiner should also indicate whether or not any hyperesthesia and hypoesthesia of the feet and toes found (as noted on the September 2011 examination) are attributable to Morton's neuroma or other pes planus-related condition, or are distinguishable as due solely to other nonservice-connected and co-existing foot disability. The examiner should also comment on the impact the Veteran's service-connected foot disabilities (pes planus and right and left foot DJD) have on his employability, identifying (with explanation) what types of employment would be precluded by the foot disabilities, and what types of employment remain feasible despite the disabilities. The examiner should include rationale for all opinions. 2. Thereafter, arrange for the record to be forwarded to a VA Vocational Rehabilitation Division counselor for review and an advisory opinion. Based on review of the record the counselor should offer an opinion regarding the effect the Veteran's service-connected disabilities have on his employability, considering his education (associate liberal arts degree) and occupational experience (postal carrier) but not the effects of age and any nonservice-connected disabilities. The consulting vocational specialist should opine whether the Veteran's service-connected disabilities preclude him from participating in any substantially gainful employment consistent with his education and work experience. The consultant should identify (provide examples of) the types of employment that would be inconsistent with the service-connected disabilities (in light of the Veteran's education and work experience) and any types of employment that would remain feasible despite the service-connected disabilities (and the limited work experience, as noted by the private "vocational consultant" in the February 2014 vocational assessment). The VA vocational counselor should provide rationale for the opinion offered, to specifically include comment on the February 2014 opinion by the private vocational consultant (expressing, with rationale, agreement or disagreement with that opinion). 3. After completion of the foregoing development, readjudicate the claims for increased ratings for bilateral pes planus (for periods before and from June 26, 2008) and for a TDIU rating (to include whether referral for consideration of an extraschedular award under 38 C.F.R. § 4.16(b) is indicated). Regarding the pes planus claim, consider, if appropriate, application of 38 C.F.R. § 4.71a, Diagnostic Codes 5279, 5280, 5284, in regard to the feet, and 38 C.F.R. § 4.73, Diagnostic Codes 5310-5312, in regard to muscle impairment in the foot and leg. If separate ratings are not indicated, please explain. If either benefit sought remains denied, issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2013).