Citation Nr: 1757595 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 17-30 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right ankle strain. 2. Entitlement to service connection for a left ankle strain. 3. Entitlement to a rating in excess of 30 percent for bilateral pes planus, status post excision traction spur of left calcaneus and status post excision of eccrine poroma left foot. 4. Entitlement to a rating in excess of 10 percent for degenerative changes to the bilateral feet. 5. Entitlement to a compensable rating for right hallux valgus. 6. Entitlement to a compensable rating for left hallux valgus. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney-at-Law ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from December 1958 to November 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied service connection for a bilateral ankle condition; and continued 30 percent rating for bilateral pes planus, a 10 percent rating for degenerative changes to the bilateral feet, and a noncompensable rating for right and left hallux valgus. In January and February 2013, the Veteran submitted statements and evidence in support of his claims for service connection for the bilateral ankles and for increased ratings for bilateral pes planus, degenerative changes to the bilateral feet, and right and left hallux valgus. Whether these statements and evidence are considered notices of disagreement or new and material evidence within the one year appeal period, the Board finds that the claims filed on November 17, 2010 remained pending and are before the Board on this appeal. See 38 C.F.R. § 20.201 (NOD does not require special wording); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)); Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011) (to comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim). The Veteran has alleged an inability to retain employment due, in part, to his service-connected bilateral foot disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that the issue of entitlement to a TDIU is part of an increased rating claim when the Veteran is seeking the highest rating possible and there is evidence of unemployability. As such, the issue of entitlement to a TDIU is now before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of service connection for right and left ankle strain and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. From November 17, 2010, to April 30, 2015, the symptoms of the Veteran's bilateral pes planus most nearly approximated severe symptoms, without marked pronation, extreme tenderness of the plantar surfaces of the feet, or severe pain on manipulation. 2. From April 30, 2015, the symptoms of the Veteran's bilateral pes planus have more nearly approximated pronounced severity, with marked pronation, extreme tenderness of the plantar surfaces of the feet, and severe pain on manipulation, which is not improved by orthopedic shoes or appliances. 3. From November 17, 2010, to March 23, 2016, symptoms of the Veteran's right and left hallux valgus did not was not operated with resection of the metatarsal head, and was not manifested by severe symptoms equivalent to amputation of the great toe. 4. From March 23, 2016, the Veteran's right and left hallux valgus more closely approximates severe symptoms equivalent to amputation of the great toe. 5. From November 17, 2010, the Veteran's degenerative changes to the bilateral feet did not reflect x-ray evidence of involvement of two or more minor joint groups with occasional incapacitating episodes. CONCLUSIONS OF LAW 1. From November 17, 2010, to April 30, 2015, the criteria for a disability rating in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.10, 4.71a, Diagnostic Code (DC) 5276 (2017). 2. From April 30, 2015, the criteria for a disability rating of 50 percent for bilateral pes planus have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.10, 4.71a, DC 5276. 3. From November 17, 2010, to March 23, 2016, the criteria for a compensable disability rating for right and left hallux valgus have not been met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.10, 4.71a, DC 5280 (2017). 4. From March 23, 2015, the criteria for a disability rating of 10 percent for right and left hallux valgus have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.10, 4.71a, DC 5280. 5. From November 17, 2010, the criteria for a disability rating of in excess of 10 percent for degenerative changes of the bilateral feet have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.10, 4.71a, DC 5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Higher Disability Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Id. at 509. The Veteran contends that his service-connected bilateral pes planus, degenerative changes to the bilateral feet, and bilateral hallux valgus should be rated higher. The Veteran's bilateral pes planus is currently rated 30 percent under DC 5276, his degenerative changes to the bilateral feet is currently rated at 10 percent under DC 5010, and his right and left hallux valgus are each separately rated as noncompensable under DC 5280. As stated above, the Veteran filed his current claim for increased ratings on November 17, 2010. Under DC 5010, arthritis due to trauma substantiated by x-rays is rated as degenerative arthritis. DC 5003 for degenerative arthritis provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a. Under DC 5003, a 10 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a rating of 20 percent is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. The bones of the foot are a minor joint. See 38 C.F.R. § 4.45. Under DC 5276, mild flatfoot with symptoms relieved by built-up shoe or arch support is rated noncompensable. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, is rated as 20 percent disabling for a unilateral disability, and is rated as 30 percent disabling for a bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo-Achilles on manipulation, that is not improved by orthopedic shoes or appliances, is rated as 30 percent disabling for a unilateral disability, and is rated as 50 percent disabling for a bilateral disability. Under DC 5280, unilateral hallux valgus operated with resection of metatarsal head is rated as 10 percent disabling. In addition, severe unilateral hallux valgus, if equivalent to amputation of the great toe, is also rated as 10 percent disabling. A September 2011 VA examination report reflects constant pain in the bilateral feet, which traveled up the legs to his lower back. The Veteran described the pain as burning, aching, sharp, and cramping, rated at 10 out of 10. Physical activity exacerbated the pain, but it also came on spontaneously. At the time of pain, the Veteran could function if he took medication. At rest, the Veteran had pain, weakness, stiffness, swelling, and fatigue. While standing or walking, the Veteran had pain, weakness, stiffness, swelling, and fatigue. The Veteran stated that he could not walk or stand for long periods of time due to the pain that traveled to his lower back. Examination of the feet did not reveal any signs of abnormal weight-bearing or breakdown, callosities, or any unusual shoe-wear pattern. He did not require any assistive device for ambulation. Examination of the bilateral feet revealed tenderness, but no painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. There was active motion in the metatarsophalangeal (MTP) joint of the right and left great toes. Palpation of the plantar surface of both feet indicated slight tenderness, and alignment of the Achilles tendon was normal on the right and left during weight-bearing and nonweight-bearing. There was a slight degree of valgus bilaterally, which could be corrected by manipulation. In addition, both feet showed no forefoot or midfoot malalignment; and no deformity such as inward rotation, medial tilting of the upper border of the talus, marked pronation, or eversion of the whole foot. There was no pes cavus, hammer toes, Morton's neuroma, metatarsalgia, or hallux rigidus. There was hallux valgus of the right and left foot with slight degree of angulation and no resection of the metatarsal head. The Veteran had limitations with standing and walking, and difficulty with prolonged standing and walking, but he did not require any type of support with his shoes. A January 2013 VA examination report reflects x-rays showing bilateral pes planus; moderate degenerative joint disease (DJD) in the talonavicular joints and dorsal midfoot bilaterally, left greater than right; mild DJD at the first MTP joints bilaterally; moderate enthesopathy at the Achilles tendon insertions bilaterally; and small bilateral plantar calcaneal spurs. The examiner diagnosed mild to moderate hallux valgus bilaterally, hammer toes, and degenerative arthritis bilaterally in multiple joints of the same foot. There was no Morton's neuroma, metatarsalgia, hallux rigidus, pes cavus, malunion or nonunion, or tarsal or metatarsal bones. The Veteran was unable to walk without a walker. August 2013 records indicate no fracture or dislocation, moderate DJD at the talonavicular joint and midfoot with dorsal spurring, small plantar and retrocalcaneal enthesophytes, mild pes planus, and unremarkable soft tissues. A December 2013 VA examiner report reflects bilateral pes planus. The Veteran experienced pain on use, which was also accentuated on use bilaterally; but no pain on manipulation of the feet, swelling on use, characteristic calluses, or extreme tenderness of the plantar surface. The Veteran's bilateral pes planus symptoms were not relieved by arch supports, and there was decreased longitudinal arch height on weight-bearing. There was no objective evidence of marked deformity of the foot, pronation of the foot, "inward" bowing of the Achilles tendon, marked inward displacement, and severe spasm of the Achilles tendon. The weight-bearing line did not fall over or medial to the great toe. The Veteran used braces and a walker constantly. The Veteran's bilateral pes planus was moderate. The examiner also diagnosed hallux valgus, and degenerative changes bilaterally. In regards to the DJD, the examiner noted that the condition had gotten worse, and that the Veteran could not perform daily activities without pain. The Veteran's bilateral hallux valgus was mild to moderate, and he did not require surgery. There was no Morton's neuroma, metatarsalgia, hammer toes, hallux rigidus, pes cavus, or malunion or nonunion. The Veteran's functional impact of his feet disabilities was difficulty walking long distances. An April 2015 VA examination report reflects bilateral pes planus, bilateral metatarsalgia, bilateral hallux valgus, and bilateral hallux rigidus. The Veteran reported constant pain especially when walking, and was unable to stand for a period of time. Concerning the Veteran's pes planus, the examiner noted that the Veteran had pain on use of both feet accentuated on manipulation, pain on manipulation and use accentuated, no swelling, and no characteristic calluses. He had extreme tenderness of the plantar surfaces bilaterally, which were not improved by orthopedics shoes or appliances. He had decreased longitudinal arch height bilaterally, objective evidence of marked deformity bilaterally, and marked pronation bilaterally not improved by orthopedic shoes. The weight-bearing line did not fall over or medial to the great toe; and the Veteran did not have inward bowing of the Achilles tendon, marked inward displacement, or severe spasm of the Achilles tendon. The Veteran experienced mild to moderate symptoms of hallux valgus with no history of surgery. His hallux rigidus was severe, with function equivalent to amputation of the great toe bilaterally. The Veteran also had pes cavus (clawfoot) with marked tenderness under the metatarsal heads. The examiner noted that the contributing factors of the disabilities were less movement than normal, pain on movement, and pain on nonweight-bearing and weight-bearing. A March 2016 private opinion from Dr. Miller reflects a telephone interview with the Veteran during which he stated that he did not push off with the great toe of either foot because this produced pain in the great toe. He also stated that he had lost significant motion in the great toe of each foot. X-rays of the Veteran's MTP joints of the great toes did not show severe arthritic changes, but the physician noted that it was well-known among orthopedic surgeons that x-rays often did not accurately depict the actual clinical symptoms. Based on review of the claims file and the Veteran's interview, Dr. Miller opined that the severity of the Veteran's hallux valgus resulted in significantly abnormal mechanical forces brought across the MTP joint of each great toe when the Veteran was standing or walking, which resulted in the Veteran losing significant propulsion of both feet based on his inability to plantar flex the foot/toes. As such, the Veteran had a moderately severe disability of each foot. The Veteran also reported that he had progressively worsening pain in his feet, "fallen arches" that resulted in significant pain in the bottom of the arches, and significant pain in the "top" area of his foot between the ankle and his toes. Dr. Miller opined that the Veteran's 30 percent disability rating did not accurately represent the severity of his disability because the overall severity of the Veteran's clinical picture as it related to his severe bilateral pes planus was not accurately assessed by the severity of the deformity, strength of the foot, or propulsion of either foot. He stated that in order to accurately assess the true clinical disability associated with the Veteran's pes planus, consideration should be given to the impact the disability had upon the Veteran's employment. He noted that the Veteran's foot deformity resulted in such significant pain that from 1983 to 1997, the Veteran essentially was employed in a protected environment. Once he was not able to work under these conditions, he was no longer able to work even part-time. Therefore, he opined that it was at least as likely as not that the Veteran was forced out of the work environment because of the severity of his symptoms from his service-connected bilateral pes planus. Upon review of the evidence of record, the Board finds that a rating in excess of 30 percent for bilateral pes planus prior to April 30, 2015, is not warranted; and that a rating of 50 percent from April 30, 2015, is warranted. In addition, the Board finds that a compensable rating for the Veteran's hallux valgus prior to March 23, 2016, is not warranted; and that a rating of 10 percent from March 23, 2016, is warranted. Finally, the Board finds that a rating in excess of 10 percent for degenerative changes of the bilateral feet is not warranted. Concerning the Veteran's bilateral pes planus, prior to April 30, 2015, the Veteran reported pain to his feet, which was exacerbated with physical activity and relieved with medication. However he did not have any signs of abnormal weight-bearing or breakdown, callosities, or any unusual shoe wear pattern. He experience slight tenderness, but not extreme tenderness, to the plantar surface; and he had normal weight-bearing with no inward bowing of the Achilles tendon. In addition, records in August 2013 described his bilateral pes planus as mild, and the December 2013 VA examiner described it as moderate. While the examiners' characterization of the level of disability is not binding on the Board, here it is consistent with the above evidence indicating that, prior to April 30, 2015, the Veteran's bilateral pes planus more closely approximated severe rather than pronounced symptoms, and warrants a 30 percent disability rating during this time period. However, from April 30, 2015, the evidence reflects pain on both feet, accentuated on use; pain on manipulation of both feet and accentuated on manipulation; extreme tenderness of the plantar surfaces; and decreased longitudinal arch height on weight-bearing bilaterally. In addition, the Veteran reported that he used arch supports with no improvement. The Board notes that the evidence does not show "inward" bowing of the Achilles tendon, marked inward displacement, or severe spasm of the Achilles tendon. Nevertheless, the evidence indicates that there was marked deformity and pronation bilaterally. The totality of the symptoms reflect a marked worsening of the Veteran's bilateral pes planus as of that date, and the Board finds that the evidence of extreme tenderness of bilateral plantar surfaces, pain on manipulation and weight-bearing, and marked pronation and deformity more closely approximates pronounced severity and warrants a 50 percent disability rating from April 30, 2015, the maximum schedular rating under the rating criteria. In regards to the Veteran's hallux valgus, prior to March 23, 2016, the evidence reflects that the Veteran had mild to moderate hallux valgus with no surgery. Specifically, there was a slight degree of valgus present in September 2011; and mild to moderate hallux valgus in January 2013, December 2013, and April 2015. As such, the Board finds that prior to March 23, 2016, the Veteran's right and left hallux valgus did not meet the criteria for a compensable rating of operated with resection of the metatarsal head or severe symptoms equivalent to amputation of the great toe. However, from March 23, 2016, the record shows that the Veteran had lost significant motion in the great toe, and Dr. Miller opined that the severity of the Veteran's hallux valgus resulted in significantly abnormal mechanical forces brought across the MTP joint of each great toe when the Veteran was standing or walking. This, in turn, resulted in the loss of significant propulsion of both feet based on the Veteran's inability to plantar flex the foot/toes. As such, Dr. Miller opined that the Veteran had a moderately severe disability in each foot. Resolving reasonable doubt in the Veteran's favor, the Board finds that the symptoms described above more closely approximate severe symptoms equivalent to the amputation of the great toe, which warrants a 10 percent disability rating, the maximum rating under the rating criteria. To the extent that the Veteran may experience arthritis affected by his bilateral foot disabilities under DC 5010, arthritis is rated on the basis of limitation of motion of the part affected, and as limitation of motion is a factor for consideration under DC 5276, such limitation is already contemplated in the assigned ratings. The Board points out that the rule against pyramiding provides that evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. See C.F.R. § 4.14. In addition, there is no evidence that the Veteran's arthritis resulted in occasional incapacitating episodes of exacerbation. As such, a rating in excess of 10 percent for degenerative changes to the bilateral feet is not warranted. Further, the Court has held that "when a condition is specifically listed in the Schedule, it may not be rated by analogy." Copeland v. McDonald, 27 Vet. App. 333, 337 (2016). As such, since the Veteran's service-connected bilateral pes planus and hallux valgus are specifically listed in the rating schedule, the Board will not address other possible DCs under which the Veteran could be rated. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette, 28 Vet. App. at 369-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)." For the foregoing reasons, a rating in excess of 30 percent for bilateral pes planus prior to April 30, 2015, is not warranted; and a rating of 50 percent from April 30, 2015, is warranted. Further, a compensable rating for bilateral hallux valgus prior to March 23, 2016, is not warranted; and a rating of 10 percent from March 23, 2016, is warranted. In addition, a rating in excess of 10 percent for degenerative changes to the bilateral feet is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5276, 5280. ORDER Entitlement to a rating in excess of 30 percent for bilateral pes planus, status post excision traction spur of left calcaneus and status post excision of eccrine poroma left foot, from November 17, 2010, to April 30, 2015, is denied. Entitlement to a rating of 50 percent for bilateral pes planus, status post excision traction spur of left calcaneus and status post excision of eccrine poroma left foot, from April 30, 2015, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a compensable rating for right hallux valgus from November 17, 2010, to March 23, 2016, is denied. Entitlement to a compensable rating for left hallux valgus from November 17, 2010, to March 23, 2016, is denied. Entitlement to a 10 percent rating for right hallux valgus from March 23, 2016, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a 10 percent rating for left hallux valgus from March 23, 2016, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a rating in excess of 10 percent for degenerative changes to the bilateral feet is denied. REMAND The Board finds that additional evidentiary development is necessary before a decision can be reached on the claim concerning bilateral ankle strain. The Veteran's service treatment records (STRs) in September 1959 reflect tenderness over the lateral fibula-calcaneal ligaments. X-rays were negative for a fracture, and the impression was a sprain. The Veteran was put in a cast for three weeks. A November 1960 separation report of medical examination documents a normal clinical evaluation for the musculoskeletal system and no complaints of ankle problems. During the current appeal, the Veteran has been diagnosed with osteoarthritis of the bilateral ankles, ankle strain with retrocalcaneal spurs, and possible peroneal tendon strain. A January 2014 VA examination report reflects a diagnosis of bilateral ankle strain and retorcalcalneal spurs. The Veteran reported that the condition began in 1959 when he had a severe sprain in the left ankle in Germany, and that it had worsened with time. The VA examiner opined that the Veteran's bilateral ankle conditions were less likely than not related to service because there was insufficient evidence to link the Veteran's current ankle conditions to his military service. The Board finds the January 2014 VA examiner's opinion inadequate. The Board notes that the VA examiner's opinion appears to be solely based on a lack of treatment records, and failed to take into consideration the Veteran's statements that he has continued to experience ankle problems since his 1959 in-service ankle sprain. Moreover, the VA examiner did not provide a clear, complete rationale explaining why the Veteran's current ankle condition is not related to his in-service ankle injury. Given the noted deficiencies, the Board finds that a new opinion is needed to properly address the nature and etiology of the Veteran's bilateral ankle conditions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA provides an examination or obtains a medical opinion in connection with a claim, it is obligated to provide or obtain one that is adequate for the determination being made). See also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). In addition, as explained above, the issue of a TDIU is part and parcel of a claim for increased rating, and is properly before the Board. In his April 2011 Application for Increased Compensation Based on Unemployability, the Veteran reported that he was unemployable due to his feet, ankles, and back. In his February 2017 form, he stated that he was unemployable due to all service-connected disabilities. The Board notes that there is a claim for increased rating for a back disability and a TDIU currently pending before the AOJ. Given the Board's decision herein to remand the claims for service connection for a right and left ankle disability, its decision increasing the disability rating for the Veteran's bilateral feet disabilities, and the pending claim for an increased rating for a back disability and a TDIU before the AOJ, the Board finds that the issue of entitlement to TDIU should be remanded for adjudication in the first instance by the RO. See Parker v. Brown, 7 Vet. App. 116 (1994). Accordingly, the claims remaining on appeal are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request an opinion from an appropriate specialist physician to address the nature and etiology of any bilateral ankle disability(ies). The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the medical opinion, and the medical opinion must reflect that the claims folder was reviewed. The physician should clearly identify all diagnoses of the bilateral ankles currently present, or present at any point pertinent to the current claim on appeal, i.e., from approximately November 17, 2010-to include osteoarthritis of the bilateral ankles, ankle strain with retrocalcaneal spurs, and possible peroneal tendon strain-even if now asymptomatic or resolved. The physician should also discuss whether any currently diagnosed bilateral ankle disability is a progression of any previously diagnosed bilateral ankle disability. Then, with respect to each such diagnosed disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service or is otherwise medically-related to service, to include an ankle sprain in September 1959. In addressing the above, the physician must specifically consider and discuss all pertinent evidence, to include the in-service complaints of ankle sprain; and consider and discuss all lay assertions, to include the Veteran's assertions as to the nature, onset, and continuity of symptoms. Notably, the lack of medical treatment for or diagnosis of bilateral ankle disability during service or thereafter should not, alone, form the basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and his assertions in this regard should be considering in formulating the requested opinion. 2. After completing the above, and any additional action deemed warranted, adjudicate the claim of entitlement to service connection for a bilateral ankle disability and entitlement to a TDIU in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, furnish to the Veteran and his attorney an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. 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 of Veterans' Appeals 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 2014). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs