Citation Nr: 18160903 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 14-12 618 DATE: December 28, 2018 REMANDED Entitlement to an evaluation in excess of 10 percent for a left shoulder strain prior to October 10, 2013, is remanded. Entitlement to an evaluation in excess of 20 percent for a left shoulder strain for the period from October 10, 2013, to November 7, 2013, is remanded. Entitlement to an evaluation in excess of 10 percent for a left shoulder strain on or after November 7, 2013, is remanded. Entitlement to an evaluation in excess of 10 percent for right shoulder degenerative joint disease prior to May 5, 2011, is remanded. Entitlement to an evaluation in excess of 20 percent for right shoulder degenerative joint disease for the period from May 5, 2011, to October 10, 2013, is remanded. Entitlement to an evaluation in excess of 10 percent for right shoulder degenerative joint disease on or after October 10, 2013, is remanded. Entitlement to an evaluation in excess of 10 for right foot plantar fasciitis prior to February 24, 2014, is remanded. Entitlement to an evaluation in excess of left foot plantar fasciitis and residuals of a left fifth metatarsal fracture prior to February 24, 2014, is remanded. Entitlement to an evaluation in excess of 30 percent for bilateral plantar fasciitis with residual left fifth metatarsal fracture on or after February 24, 2014, is remanded. Entitlement to a total disability evaluation based on individual unemployability based on service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from October 2000 to July 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2014. A transcript of that hearing has been associated with the claims file. The Board previously remanded the Veteran’s claims for further development in September 2015. The case has since been returned to the Board for appellate review. In a March 2014 rating decision, the RO increased the evaluation for the Veteran’s service-connected bilateral foot disability to 30 percent effective from February 24, 2014. The RO also increased the evaluation for the Veteran’s left shoulder disability to 20 percent for the period from October 10, 2013, to November 7, 2013, but continued the 10 percent evaluation as of November 7, 2013. Similarly, the RO increased the Veteran’s right shoulder disability to 20 percent for the period from May 5, 2011, to October 10, 2013, but continued the 10 percent evaluation as of October 10, 2013. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issues remain on appeal. The Board finds that the record raises the possibility that the Veteran is unemployable because of the service-connected disabilities on appeal. See December 2010 statement; July 2015 VA Form 21-8940. Thus, a determination as to whether he is entitled to TDIU is part and parcel of the determination of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). A remand is required for the Veteran’s shoulder strain claims in light of the decision issued by the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court concluded that 38 C.F.R. § 4.59 required VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. As such, the Veteran must be afforded VA examinations that comply with Correia. Regarding the foot disorder claims, the Veteran was afforded VA examinations in December 2010, December 2013, February 2014, and March 2016. The Veteran’s service-connected foot disabilities have been evaluated under Diagnostic Code 5284 and Diagnostic Codes 5299-5276. Notably, VA’s General Counsel has determined that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion. See VAOPGCPREC 9-98. As such, the Board finds that the Veteran should be afforded an additional foot examination which complies with Correia. Therefore, an additional VA examination is needed. The Board further finds that the Veteran’s TDIU claim is inextricably intertwined with the claims being remanded herein, as these claims could affect the outcome of the TDIU claim. For this reason, the issues of entitlement to increased evaluations for the Veteran’s service-connected shoulder and foot disabilities must be resolved prior to resolution of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Therefore, a remand is required for the Agency of Original Jurisdiction (AOJ) to adjudicate the inextricably intertwined issues. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected shoulder and/or foot disabilities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After the foregoing development has been completed to the extent possible, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected left and right shoulder disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s post-service medical records and assertions. It should be noted that the Veteran is considered competent to attest to factual matters of which he has had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s service-connected left and right shoulder disabilities. In particular, the examiner should provide the range of motion in degrees and test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for both the right and left shoulders. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also indicate whether there is any form of ankyloses or impairment of the humerus, such as malunion, recurrent dislocation at the scapulohumeral joint, fibrous union, nonunion (false flail joint), and loss of head (flail shoulder). He or she should also indicate whether there is any impairment of the clavicle or scapula, such as malunion, nonunion with or without loose motion, or dislocation. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made to the examiner for review. 3. After the foregoing development has been completed to the extent possible, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected bilateral plantar fasciitis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s post-service medical records and assertions. It should be noted that the Veteran is considered competent to attest to factual matters of which he has had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether the Veteran has moderate plantar fasciitis with the weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. He or she should also address whether the Veteran has severe bilateral plantar fasciitis with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. The examiner should further indicate whether the Veteran has pronounced bilateral plantar fasciitis with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. In addition, the examiner should provide the range of motion in degrees, and test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made to the examiner for review. 4. After completing the foregoing development, the AOJ should consider whether the Veteran is entitled to TDIU. In so doing, the AOJ may decide to pursue further development of the Veteran’s employment history and/or obtain additional medical evidence or a medical opinion, as is deemed necessary. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel