Citation Nr: 21000985 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-12 506 DATE: January 6, 2021 REMANDED Entitlement to an increased rating for right foot plantar fasciitis, rated 10 percent disabling prior to May 8, 2019 and 20 percent disabling since that date, 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 June 1975 to June 1977. These matters come before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision. In January 2018, the Board remanded the issue of entitlement to an increased rating for right foot plantar fasciitis for further development. In July 2020, the agency of original jurisdiction (AOJ) awarded an increased (20 percent) disability rating for right foot plantar fasciitis, from May 8, 2019. As for characterization of the issues on appeal, the report of a September 2020 VA foot examination reflects that the Veteran was retired and that his service-connected foot disability contributed to his retirement. 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 rating possible for his service-connected right foot disability, and the evidence of unemployability, the issue of entitlement to a TDIU is properly before the Board under Roberson and Rice and the Board has expanded the appeal to include this issue. Lastly, the Board points out that the Veteran had also perfected an appeal with regard to the issues of entitlement to service connection for pseudofolliculitis barbae, right knee disability, left foot disability, and residuals of cold injury to the right and left hand, and the Board remanded these issues in January 2018 for further development. The AOJ awarded service connection for pseudofolliculitis barbae, osteoarthritis of the right knee, metatarsalgia of the left foot, and residuals of cold injury to the right and left hand by way of the July 2020 rating decision, and thereby resolved the appeal as to these issues. 1. Entitlement to an increased rating for right foot plantar fasciitis, rated 10 percent disabling prior to May 8, 2019 and 20 percent disabling since that date, is remanded. Following a July 2020 supplemental statement of the case (SSOC), additional evidence has been associated with the Veteran’s claims file by the AOJ that is relevant to the issue of entitlement to an increased rating for right foot plantar fasciitis. This evidence includes the September 2020 VA foot examination report. This relevant evidence has not been considered by the AOJ and no waiver of initial AOJ consideration of this evidence has been received. See 38 C.F.R. § 20.1305 (c). Hence, the Board is required to remand the issue of entitlement to an increased rating for right foot plantar fasciitis for issuance of the necessary SSOC. 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 Memphis Vista electronic records system (dated to October 2020) and the Chicago Vista electronic records system (dated to September 2006). 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 a TDIU due to service-connected disabilities is remanded. Since a decision on the remanded issue of entitlement to an increased rating for right foot plantar fasciitis could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. The issue of entitlement to a TDIU should be adjudicated in the first instance by the AOJ, to include appropriate notification. The Veteran should also be given an opportunity to submit a formal application for a TDIU (VA Form 21-8940). Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Send the Veteran a letter that provides him with notice as to the information and evidence that is required to substantiate his claim for a TDIU and ask the Veteran to complete a formal application for a TDIU (VA Form 21-8940) and to report his education and employment history and earnings. A copy of this letter must be included in the claims file. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for right foot 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 right foot 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. 3. Obtain the Veteran’s outstanding VA treatment records from the Memphis Vista electronic records system for the period since October 2020; the Chicago Vista electronic records system for the period since September 2006; and all such relevant records from any other sufficiently identified VA facility. 4. After the above development, and any additionally indicated development, has been completed, adjudicate the issues of entitlement to an increased rating for right foot plantar fasciitis and entitlement to a TDIU. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case that considers all additional relevant evidence (including the report of the September 2020 VA foot examination and all additional relevant evidence received since the July 2020 supplemental statement of the case) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. 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.