Citation Nr: 21003795 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 12-13 139 DATE: January 22, 2021 ORDER Entitlement to a disability rating of 30 percent, but no higher, for service-connected pes planus with plantar fasciitis is granted, effective December 3, 2008. REMANDED The request to reopen a previously denied claim for service connection for an irregular heartbeat is remanded. Entitlement to service connection for a disability of the neck is remanded. Entitlement to service connection for a disability manifested by head pain is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether, since December 3, 2008, the Veteran’s service-connected pes planus with plantar fasciitis has most closely approximated severe symptoms with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. 2. The evidence is at least evenly balanced that the relevant increase in the Veteran’s service-connected foot disabilities occurred on December 3, 2008, less than one year before receipt of the currently pending claim (March 9, 2009). 3. The preponderance of the evidence is against a finding that, at any time during the appeal period, the Veteran’s pes planus with plantar fasciitis most closely approximated pronounced symptoms with marked pronation, extreme tenderness of the plantar surfaces of the feet, or marked inward displacement and severe spasm of the Achilles’ tendon on manipulation; the Veteran’s symptoms have consistently been improved by orthopedic shoes or appliances. CONCLUSION OF LAW The criteria for a disability rating of 30 percent, but no higher, for service-connected pes planus with plantar fasciitis have been met, effective December 3, 2008. 38 U.S.C. §§ 1155, 5110(b)(3); 38 C.F.R. §§ 3.321, 3.400(o)(2), 4.1, 4.2, 4.71a, Diagnostic Code 5276 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1975 to August 1995. This case comes to the Board from rating decisions of the Agency of Original Jurisdiction (AOJ). In August 2009, the AOJ issued a decision denying service connection for claimed disabilities of the neck, feet, left Achilles tendon and a claimed disability characterized by head pain. The Veteran appealed these rulings to the Board. In February 2010, the AOJ denied his request for an increased rating for his service-connected flat feet disability. In November 2010, the AOJ continued to deny an increased rating for flat feet and also denied a request to reopen a previously denied claim for service connection for an irregular heartbeat. The Veteran also appealed these rulings to the Board. In April 2015, the AOJ increased the disability rating for flat feet from zero percent to 30 percent. But the request for a higher rating remains on appeal because the Veteran has not expressed satisfaction with the amount of the increase. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). It is also clear from the correspondence of the Veteran’s attorney that the Veteran seeks an effective date earlier than March 16, 2015 for the currently assigned 30 percent rating. In October 2017, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. In his hearing testimony, the Veteran said that he was unable to work because of pain in his lower extremities. When the issue of TDIU is raised by the record during the appeal of a claim for an increased rating, the issue of TDIU is considered part of the pending claim. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Following this principle, the Board has added TDIU to the list of issues in this appeal. This decision will resolve the increased rating claim concerning service-connected pes planus and plantar fasciitis while remanding the other claims for further development. The necessary development includes obtaining records from a cardiologist in private practice. However, there is no reasonable possibility that these outstanding records will affect the claim for an increased rating for the feet because, in a written statement dated October 2010, the Veteran wrote that he received “all my foot treatment for flat feet, foot injury and complications” from his local VA medical center. During his more recent hearing testimony, he confirmed that he still received treatment for his feet and achilles tendon from his VA podiatrist. These statements and the nature of the cardiologist’s medical expertise suggest that, under these circumstances, the need to obtain the private cardiology records should not delay resolution of the foot claim. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When two ratings are potentially applicable, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The Board may consider whether separate ratings may be assigned for separate periods of time, a practice known as staged ratings, whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The AOJ adopted the previously assigned rating pursuant to Diagnostic Code (DC) 5276 for acquired flatfoot. Acquired flat foot is rated as noncompensable when the symptoms are mild and relieved by built-up shoe or arch support. 38 C.F.R. § 4.71a, Diagnostic Code 5276. A 10 percent evaluation is warranted when symptoms are moderate with weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet. Id. A 30 percent evaluation applies to bilateral flatfoot when symptoms are severe with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. Id. A maximum 50 percent evaluation is warranted for bilateral flatfoot when symptoms are pronounced with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation with symptoms that are not improved by orthopedic shoes or appliances. Id. The terms “moderate”, “severe” and “pronounced” are not defined by regulation. Factual Background The AOJ granted the Veteran’s initial claim for service-connected compensation for flat feet in June 2002, assigning a zero percent (noncompensable) rating with an effective date of October 11, 2001. The Veteran appealed the denial of an increased rating claim for flat feet in November 2007 but it appears he did not perfect his appeal of that decision. After a statement of the case (SOC) was mailed to him on December 10, 2008, he did not file a substantive appeal (VA Form 9) until March 9, 2009 – more than 60 days after the issuance of the SOC. It seems that the AOJ appropriately treated his written statement requesting greater compensation for flat feet, also received March 9, 2009, as a new claim for an increased rating. Accordingly, the appeal period relevant to this increased rating claim extends from March 9, 2009 to the present or, if it is factually ascertainable that the disability increased in severity within one year, the appeal period may potentially extend from up to one year before the receipt of the claim (March 9, 2008) to the present. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). In his March 2009 statement, the Veteran complained of flat feet, arthritis, bone spurs, and nerve damage. He described a “malformed” achilles tendon and indicated that, during service, he had required crutches on multiple occasions. VA treatment records include a note from a podiatrist in December 2008, which explains that orthotics recently given to the Veteran “are not helping” and recommended “wider deeper shoes with flexible sole . . .” The note indicated pain in the heels, mid-foot, and also “pain into the arch and in the ball of the foot; his pain is worse as the day progresses. . .” The impression was symptomatic pes planus. Another VA podiatrist examined him in February 2009 and prepared a note indicating that the Veteran used a cane. The podiatrist wrote that the Veteran wore a “modified CAM Walker Boot” for one week, but he stopped using it because the boot felt uncomfortable when he was mowing his lawn. According to the podiatrist, there was, “pain to palpation of the distal achilles [tendon], but majority of tendon appears intact. He overall has less pain today.” This time the assessment was chronic tendonitis of the left achilles tendon. The podiatrist recommended that the Veteran wear running shoes and should no longer go barefoot at home. The Veteran visited the same podiatrist again in May 2009. The purpose of the visit, according to a podiatrist’s note, was to follow up on the achilles tendon strain. The Veteran complained of “burning plantar foot pain at times as well as various foot arches.” The examination indicated decreased pain in the posterior heel. There was, however, “pain to palpation in the distal achilles. He has diffuse pain over the midfoot and paresthesia on the plantar aspects of both feet. . .” The assessment was chronic left achilles tendonitis and burning pain of the plantar foot, possibly related to insufficient arch support. The podiatrist recommended specific shoes and arch supports. The AOJ arranged a VA examination of the Veteran’s feet in June 2009. The examiner’s report mentioned three weeks of missed work due to left ankle tendonitis. The examiner wrote that the Veteran also “has problems with prolonged standing and walking due to tendinitis and flat feet.” He told the examiner that his feet had become “slightly more symptomatic” than at the time of his previous examination in 2007. He complained of “intermittent shooting pains to both feet. He also complains of pain, weakness, fatigability to both feet both with rest and with weightbearing.” The Veteran discussed with the examiner his most recent set of arch supports and orthopedic shoes “which he wears with good results.” As for his functional abilities, the report described him as “able to stand for half an hour and to walk for several blocks. He states that his feet can be bothersome for standing just a short period of time as 10-15 minutes.” The report’s findings describing the physical examination of both feet were similar. For both feet, there was no heat, swelling, or erythema. Nor was there pain to palpation of the metatarsal heads. There was no significant hallux valgus deformity and both dorsiflexion and plantar flexion of the foot and toes were normal. But the Veteran did report pain of the plantar arch and the calcaneal area. For the right foot, the examiner described the pain as being in the area of the mid-foot. The assessment was bilateral pes planus. A VA physician assistant prepared another examination report concerning the feet in October 2010. The Veteran told the examiner that the pain in his feet was constant, but worse when standing and walking. During the examination, there was pain to palpation over the plantar medial arches of both feet. The examiner noted tenderness to palpation of bilateral medial arches, heels, and metatarsal heads. There was no achilles tendon misalignment. There was likewise no deformity, there were no spasms, and there was no abnormal movement. X-ray images of both feet were normal. In addition to pes planus, the examiner diagnosed chronic plantar fasciitis. But in her opinion, the associated functional limitations were minimal. In March 2015, a physician examined the Veteran’s feet and completed a disability benefits questionnaire. The diagnosis was flat feet (pes planus). The Veteran told the examiner that he experienced pain “everywhere” on his feet but “on [the] soles mostly.” Flare-ups of foot pain were associated with standing. According to the Veteran, functional limitations associated with his feet made standing and weight-bearing difficult. He experienced pain both on use and pain accentuated with manipulation of both feet. There was no indication of swelling on use and no characteristic calluses. The Veteran did not experience extreme tenderness of the plantar surfaces in either foot. He received some relief from his symptoms when using special shoes and orthotics. Longitudinal arch height in both feet were reduced with weight-bearing. And there was no objective evidence of marked deformity (such as pronation or abduction) in either foot. For both feet, the weight-bearing line did not fall over, nor was the line medial to, the great toe. According to the examiner, there was no “inward” bowing of the Achilles tendon. When asked to describe functional loss in the feet, the examiner noted that, in both feet, the Veteran experienced pain on weight-bearing and interference with standing. The report indicates that the Veteran did not use assistive devices, such as a cane, walker, or wheelchair. During the July 2017 hearing, the Veteran attributed pain in the middle of his feet to his plantar fasciitis. He said that this pain was at its worst, “when I get up in the morning, I have to basically walk on eggshells across the floor until it kind of heals up. It feels like something oval is under the bottom of my foot.” He also said that, when “I get up, my feet are hurting. When I go to bed, my feet are hurting.” The Veteran testified that his symptoms had become worse since the March 2015 examination. He suggested that, even at a “desk job”, he did not think he was able to work, because the intensity of the pain in his feet was too distracting. He also testified that his orthopedic shoes and inserts helped relieve his symptoms. The most recent foot conditions examination took place in November 2018. The examiner’s report indicated diagnoses of pes planus and plantar fasciitis. According to the report’s medical history section, the Veteran described constant, burning pain in his toes as well as pain in the balls, arches, heels and across the entire bottom of both feet. He also told the examiner that, approximately once or twice each month, he experienced flare-ups, in which his symptoms become so severe that “he is basically unable to do anything.” The Veteran said that these symptoms “resolve in about 1-2 days if he stays off his feet for the entire day.” According to the report, the Veteran’s pes planus caused pain on use of both feet as well as pain accentuated on use. He also experienced pain on manipulation of both feet. But there was no swelling on use and there were no characteristic calluses. The Veteran did not have extreme tenderness of the plantar surfaces of either foot. Symptoms in both feet were relieved by orthotics. According to the examiner, neither of the feet exhibited marked pronation or marked deformity. But in both feet, the longitudinal arch height was decreased. The weight-bearing line for both feet was did not fall over, nor was the line medial to, the great toe. And neither foot exhibited inward bowing of the Achilles’ tendon. The Achilles’ tendon did not experience marked inward displacement or severe spasm on manipulation of either foot. Section X of the examination form (“Foot Injuries and Other Conditions”) indicates that the Veteran did not have any foot injuries or other foot conditions not already described in the report. Section XIII of the report (“Functional Loss and Limitation of Motion”) identifies the following factors contributing to disability, all of which were present in both feet: weakened movement, excess fatigability, pain on weight-bearing, and pain on non weight-bearing. Section XIV (“Other Pertinent Findings, Complications, Conditions, Signs, Symptoms and Scars”) indicates that no other findings or symptoms were related to any conditions listed in the report’s diagnosis section. As for the use of assistive devices, the examiner wrote that the Veteran occasionally used a cane when walking. The examiner also completed a statement indicating that, in her opinion, it was likely the Veteran’s foot disabilities were compatible with light work. There are numerous VA podiatry records describing the Veteran’s feet symptoms between 2007 and 2019. Much of the information in these records has already been provided in the summary of the examination reports and, for the sake of brevity, the Board will not describe all of them in detail. Many of these notes reflect treatment of left Achilles tendonitis and others describe adjustments or replacements of the orthotics, special shoes, and inserts used to mitigate the Veteran’s foot symptoms. The podiatry records indicate the presence of chronic plantar fasciitis in May 2010. According to an August 2020 note, the Veteran took a day off of work due to a flare-up of Achilles tendonitis. In March 2011, he once again told his podiatrist that he “had to take one day off work due to the severity of his achilles pain.” According to notes in October 2011 and June 2012, the Veteran could “ambulate well” and his gait was nonantalgic. Many earlier and subsequent notes reflect general foot pain. An August 2015 note described swelling of the ankle after the Veteran had been on his feet three hours but noted “improved” plantar fasciitis. The same note indicated that the Veteran had cut his grass “up and down the hill at home” and that his “pain [was] resolved now.” But a December 2015 note rated the intensity of foot pain as 8 on a scale of 1 to 10 and, like the Veteran’s hearing testimony, described the pain as being worse in the morning. Inward bowing of the Achilles’ tendon was noted in December 2017 and June 2018. The second of these notes mentioned a “spasm” on the bottom of the right foot “which comes and goes.” In August 2019, a physician assistant provide an opinion indicating that plantar fasciitis and Achilles’ tendonitis were both likely related to the Veteran’s service-connected pes planus. Relying on that opinion, the AOJ granted service connection for Achilles tendonitis, assigning an additional 10 percent rating with an effective date of March 9, 2009. The AOJ also granted service connection for plantar fasciitis, which was rated together with pes planus. Both disabilities were assigned an increased 10 percent compensable rating for the period between March 9, 2009 and March 16, 2015. For the period since March 16, 2015, the previously assigned 30 percent rating was continued. Analysis The 10 percent rating currently assigned to the period between March 2009 and March 2015 is appropriate for unilateral or bilateral pes planus with moderate symptoms, specifically “weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet . . .” 38 C.F.R. § 4.71a, DC 5276. The 30 percent rating assigned since March 16, 2015 is authorized for severe bilateral pes planus – i.e., “objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. . .” Id. In an unpublished opinion, the United States Court of Appeals for Veterans’ Claims explained that, “DC 5276 does not include any criteria with conjunctive requirements; instead, symptoms are separated with commas. Contrary to the Secretary’s argument, the absence of ‘and’ and other conjunctive language indicates that [the appellant] does not have to demonstrate all of the criteria to be assigned that evaluation.” Harris v. McDonald, No. 15-1668, 2016 U.S. App. Vet. Claims LEXIS 1338, at *16 (August 31, 2016). In reviewing the evidence in that case, the Court explained that, based on the relevant examination reports, the appellant demonstrated two of the symptoms listed in the criteria for a 10 percent rating, one symptom listed in the criteria for a 30 percent rating, and two symptoms listed in the criteria for a 50 percent rating. In vacating the Board’s finding that the appellant’s symptoms did not meet or more closely approximate the criteria for an increased rating, the Court explained that, “because DC 5276 is neither successive nor conjunctive, the veteran could satisfy criteria in the 50% evaluation without establishing criteria in the 10% or 30% evaluations. See Tatum [v. Shinseki] 23 Vet. App. [152,] 156 [(2009]. However, the Board did not explain why a 50% evaluation was not warranted when there appeared to be a question as to which evaluation applied given that [the appellant] may satisfy criteria in the 10% evaluation, criterion in the 30% evaluation, and criteria in the 50% evaluation.” Id. at *18. In at least one respect, this is a simpler case because the evidence weighs strongly against a finding that any of the symptoms listed in the criteria for a higher 50 percent rating under DC 5276 were present for any identifiable portion of the relevant appeal period. There is no evidence that the Veteran’s pes planus is associated with marked pronation. On the contrary the March 2015 examiner wrote that there was no evidence of marked deformity or marked pronation. The November 2018 examiner, who inspected the Veteran’s feet after he testified that his symptoms had worsened in severity, clearly indicated “no” when asked, on the examination form, whether there was marked pronation for both feet and when asked if there was evidence of marked deformity. Both examiners likewise indicated “no” when asked if the Veteran had extreme tenderness of the plantar surfaces of one or both feet. As for the other criteria for a 50 percent rating, it is significant that, according to both the March 2015 and November 2018 reports, there was no marked inward displacement and severe spasm of the Achilles tendon on manipulation. One podiatry note, dated June 2018, does mention a spasm affecting the bottom of the right foot only. According to the podiatrist, the spasm “comes and goes. . .” The fact that the subsequent November 2018 report indicates there were no severe spasms of the Achilles tendon on manipulation, and the fact that the other podiatry notes do not mention such spasms either, weigh against a finding that the Veteran’s symptoms most closely approximate the criteria for a 50 percent rating, particularly when none of the other 50 percent criteria are even arguably present. The location of the spasm (“bottom of the right foot”) suggests that the spasm noted in June 2018 was not a spasm of the Achilles tendon. And there is nothing to suggest that the spasm was “severe” as the term is used in DC 5276. The October 2010 report also indicated that there were no spasms. The 50 percent rating criteria indicate that such a rating is appropriate when the relevant symptoms that are not improved by orthopedic shoes or appliances. To assign such a rating would be inconsistent with the strong evidence that these or similar devices do improve this Veteran’s symptoms and have done so almost for the entire appeal period. A December 2008 podiatry note indicates that one set of orthotics recently given to the Veteran “are not helping with his feet” but this evidence is best understood as suggesting that one particular type or size of orthotic failed to provide relief. During the July 2017 hearing, the Veteran testified that, although his symptoms had worsened since the previous examination, orthopedic shoes and inserts did help to relieve his symptoms. Moreover, after the December 2008 note indicated that orthotics were “not helping” the Veteran continued to try and use different kinds of special shoes, orthotics and inserts and to replace them when they would wear out. It is difficult to see why he or his treating podiatrist would pursue these efforts if orthopedic shoes and appliances provided no relief. He told the June 2009 examiner that he experienced “good results” when he wore his arch supports and orthopedic shoes. Both the March 2015 and November 2018 reports also indicated that symptoms were relieved by orthotics. Under these circumstances, a 50 percent rating would be inappropriate. But the Veteran’s attorney makes a persuasive argument that an earlier effective date is appropriate for the 30 percent rating previously assigned. For the period between March 9, 2009 and March 15, 2015, the previously assigned 10 percent rating contemplates “pain on manipulation and use” of the bilateral feet. 38 C.F.R. § 4.71a, DC 5276. The June 2009 examination report indicates that the Veteran experienced pain in both feet “both with rest and with weightbearing.” The October 2010 report describe the Veteran’s foot pain as constant. This information supports a finding that, well before March 2015, pain was “accentuated” on manipulation and use (the language DC 5276 uses in the criteria for a 30 percent rating) and that this is a better description of the Veteran’s foot pain than the language of the 10 percent criteria (“pain on manipulation and use”) because it suggests that, at rest, pain is present already and that pre-existing foot pain is “accentuated” – not created – by use or manipulation. As noted, 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2) authorize an effective date up to one year before the receipt of the date of claim (March 9, 2009) if it is factually ascertainable that the disability increased in severity within that year. The Veteran’s attorney argues that three specific podiatry notes – the earliest of which is dated December 3, 2008 – justify the assignment of a 30 percent rating. Because the December 2008 indicates that the Veteran’s orthotics were “not helping” the note is consistent with an increase in disability. The Veteran’s later statement to the June 2009 VA examiner that his foot pain increased in severity since 2007 also tends to support such a finding. The note refers to the Veteran’s pes planus as “symptomatic” and mentions foot pain “into the arch and ball” without limiting that description to periods of use or manipulation. Resolving reasonable doubt in the Veteran’s favor, see 38 C.F.R. § 4.3, the Board will find that he began to meet the criteria for a 30 percent disability on December 3, 2008. Since that date is less than one year before the date of receipt of the currently pending claim, the effective date of the 30 percent rating will be moved forward accordingly. The Veteran’s attorney also argues that he is “entitled to increased and separate ratings for his left and right feet. This increase would bring [the] Veteran’s rating for his left foot to 30% and the rating for right foot to 30%.” The Board disagrees with this argument because it is inconsistent with the text of DC 5276, which provides for a single 30 percent rating when severe symptoms of pes planus are “bilateral” – that is, when they affect both feet. 38 C.F.R. § 4.71a, DC 5284 (“Foot injuries, other”) does authorize separate ratings for both feet. But using DC 5284 to rate the Veteran’s clear diagnosis of pes planus would be inconsistent with Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (“a listed condition should be rated under the [diagnostic code] that specifically pertains to it.”) The Board has considered the possibility of assigning a separate rating for the Veteran’s service-connected plantar fasciitis. But it appears that such a rating would result in compensating the Veteran twice for overlapping symptoms, a practice prohibited by 38 C.F.R. § 4.14 (“Avoidance of Pyramiding”). During the hearing, the Veteran described the symptoms of his plantar fasciitis as the foot pain and discomfort that made it difficult to walk, especially in the mornings. The November 2018 VA examiner diagnosed both pes planus and plantar fasciitis and listed all the symptoms previously summarized in section III (“Flatfoot (Pes Planus)”) of the examination report form. On Section XIV (“Other Pertinent Findings, Complications, Conditions, Signs, Symptoms and Scars”), the examiner wrote that no other findings or symptoms were related to any conditions listed in the report’s diagnosis section. From this information, it is reasonable to conclude that the symptom most closely associated with the Veteran’s service-connected plantar fasciitis was bilateral foot pain, accentuated on manipulation and use. Because these symptoms are expressly contemplated by the Veteran’s previously assigned rating under DC 5276, a separate compensable rating for plantar fasciitis would violate 38 C.F.R. § 4.14. The Veteran’s attorney also argues that the Veteran is unable to work because of pain in his feet. While the issue of TDIU is being remanded for further development, this argument also raises the question of whether the Veteran’s service-connected pes planus causes “marked interference with employment”, one of the factors relevant to extraschedular disability ratings potentially authorized in unusual cases by 38 C.F.R. § 3.321(b)(1). There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. The Veteran’s testimony and the medical evidence both indicate that, because of his service-connected foot disabilities, he has difficulty standing and walking for more than short periods. Difficulty standing and walking are not specifically mentioned in the rating criteria for service-connected pes planus under DC 5276. But in the recent case of Long v. Wilkie, No. 16-1537, ___ Vet. App. ___, 2020 U.S. Vet. Claims LEXIS 2371 (December 30, 2020) (en banc), the U.S. Court of Appeals for Veterans’ Claims explained that, “we have consistently declined to treat Thun’s first step as a mechanical test that is satisfied whenever a veteran presents a symptom not expressly listed in the diagnostic code. This makes sense, as Thun sought merely to interpret what § 3.321(b)(1) means by ‘exceptional’ cases; it never intended to displace the regulation with a more lenient, court-created, standard whereby anything not expressly listed in a diagnostic code is automatically deemed exceptional.” Id. at *7. “This inquiry is not reducible to a mere comparison between symptoms and the diagnostic criteria but requires a reasoned assessment of both the veteran’s full disability picture and the capacity of the rating schedule to evaluate such.” Id. at *9. In Long, the appellant argued that the diagnostic criteria for rating a service-connected hearing loss disability “fail to account for his varied symptoms and effects, including: anxiety and depression symptoms; decreased self-esteem and personal satisfaction, problems with speech discrimination not helped by hearing aids, interference with his ability to work with his students, increased difficulty writing lesson plans and preparing for classes, and ear pain resulting from the use of hearing aids.” Id. at *15-16. Relying on Doucette, the Court held that the Board did not err by finding that the rating criteria for hearing loss contemplated the appellant’s difficulties understanding speech in an everyday work environment. “At the heart of this case is his remaining contention, that the Board was required to explain how the mechanical nature of the rating criteria for hearing loss contemplate the various functional effects that he experiences beyond the ‘inability to hear or understand speech or to hear other sounds in various contexts.’ Doucette, 28 Vet. App. at 369. These effects, per the veteran, include difficulty establishing and keeping relationships, reduced self-esteem and personal satisfaction, and various work-related difficulties such as interacting with students and writing lesson plans.” Id. at *16-17. The Court held that these symptoms did not establish such an exceptional disability picture that the available schedular ratings were inadequate. With respect to the appellant’s complaints of reduced self-esteem and personal satisfaction, the Court rejected the appellant’s argument because, to the extent that they amounted to a mental disability warranting compensation, they could be adequately evaluated using the VA formula for evaluating mental disorders. Id. at *17. The Court then agreed with the Board that the evidence failed to link the appellant’s anxiety and depression to hearing loss and VA already evaluated anxiety and depression separately under the appropriate criteria. “Again, where a disability proves capable of evaluation by conventional means, it cannot be deemed exceptional. And the mere fact that [the appellant’s] conditions were not, according to VA’s initial determination, recognized as compensable under the criteria specifically designed to evaluate psychiatric disorders is not enough to trigger extraschedular consideration.” Id. at *19. In this case, although DC 5276 does not specifically list difficulty standing and walking among the rating criteria for service-connected pes planus, the criteria expressly do consider his foot pain, both at rest and accentuated on use and manipulation. According to the October 2010 examination report, “Standing on feet all day causes increased pain and he has had to cut back working part-time because of foot pain and left Achilles pain and swelling.” (emphasis added). During the hearing, the Veteran testified that it would be difficult to work because pain from his feet would be distracting. But the 30 percent rating assigned to his feet and the 10 percent rating assigned to his left Achilles’ tendonitis contemplate this pain. To the extent that the distractions associated with his pain amounts to a diagnosable mental illness, see Martinez-Bodon v Wilkie, 32 Vet. App. 393, 404 (2020), those symptoms could potentially be compensable under 38 C.F.R. § 4.130 as “disturbances of motivation and mood” or “difficulty adapting to stressful circumstances including work or a worklike setting) . . .” As the Court explained in Long, the fact that the symptoms described by the Veteran are “capable of evaluation by conventional means” tends to show that they do not present an exceptional disability picture. Throughout the appeal period, it has been clear that the Veteran’s foot pain, both at rest and with use and manipulation, is the most consistent and seriously disabling symptom associated with his service-connected foot disability. That pain is expressly contemplated by his 30 percent rating under DC 5276 and is also the cause of his interference with standing or walking for extended periods. Under these circumstances, the Board finds that the Veteran’s symptoms are fairly contemplated by the schedular rating criteria. Finding that these symptoms satisfy step one of the extraschedular inquiry would be reasonable only if step one was essentially a “mechanical test that is satisfied whenever a veteran presents a symptom not expressly listed in the diagnostic code.” Long, ___ Vet. App. at __, 2020 U.S. Vet. Claims LEXIS 2371, at *7. In Long the Court rejected precisely that approach. Because schedular rating tools are adequate to evaluate the symptoms associated with his service-connected foot disability, the evidence fails to satisfy step one of the extraschedular inquiry and, therefore, an extraschedular rating is inappropriate. For these reasons, a disability rating of 30 percent, but no higher, for the Veteran’s service-connected pes planus with plantar fasciitis is granted, effective December 3, 2008. REASONS FOR REMAND Request to Reopen Claim for Service Connection for Irregular Heartbeat When the Board remands an appeal, the claimant obtains a right to compliance with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in December 2017 with instructions to obtain copies of records from a cardiologist. At that time, the claims file included records from the cardiologist concerning treatment in 2009 and 2010. VA treatment records indicated that the Veteran was still having appointments with the same cardiologist in 2014, and records of the recent visits were unavailable. In its remand orders, the Board asked the AOJ to obtain the more recent records from this cardiologist. The AOJ attempted to comply with these instructions by mailing a letter to the Veteran in September 2018. That letter invited the Veteran to authorize VA to obtain copies “regarding all private medical providers [from whom] . . . you have received medical care between April 2015 to July 2018, for your remanded claims of neck, head pain. . . residuals to injury to bilateral feet, and irregular heart beat.” Although the Veteran did not respond to the September 2018 post-remand letter, the letter’s text may have been too confusing to accomplish the goals of the remand. The letter did not identify the cardiologist (Dr. Awan) and the scope of the authorization requested in the letter (April 2015 to July 2018) does not even include the date of the most recent confirmed appointment with Dr. Awan (October 2014). Under these circumstances, the Board must remand the irregular heartbeat claim to arrange new efforts to obtain the cardiologist’s records. Head and Neck Claims During the videoconference hearing, the Veteran testified that his neck pain and head pain began around the time of an automobile accident during his active duty service. According to the Veteran, the accident occurred in May 1990 and he was “hit from the rear and knocked into the vehicle in front of me, injuring my right foot, my neck and shoulder area, and my lower back.” He further testified that he injured his head during the accident and described what appears to have been a brief period of post-injury memory loss. When he was asked about in-service treatment for these injuries, he testified that, “I was just given some Motrin, basically. I thought I could fight it off, just kind of deal with it.” Although the 1990 accident is not mentioned in the service treatment records, he is competent to describe the in-service injuries and to provide information about the history of his post-injury head and neck pain. Post-service medical records indicate a diagnosis of cervicalgia while headaches are observable to an ordinary person. Accordingly, for both the neck and head claims, the evidence satisfies the standard for requiring a medical examination and opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board will remand both claims to arrange the examinations. TDIU The issue of a TDIU is intertwined with the remanded claims because those claims, if successful, could potentially affect whether the Veteran is eligible to receive a TDIU rating. The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). The matters are REMANDED for the following action: 1. Obtain and associate with the claims folder copies of all records of the Veteran’s VA medical treatment since January 2019. 2. After obtaining the necessary authorization from the Veteran, the AOJ should attempt to obtain copies of all post-2009 records of the Veteran’s medical treatment from Dr. Mustafa Awan, a specialist in cardiology currently or previously associated with the University of South Alabama. The post-remand letter to the Veteran should inform him that his VA claims file currently includes some records from Dr. Awan from 2009 and 2010, but that more recent records are not currently part his VA claims file. Please advise the Veteran that, according to his VA treatment records, he was still having appointments with Dr. Awan in October 2014. If the requested records cannot be located, this should be noted in the claims file and the AOJ should notify the Veteran that the AOJ could not obtain more recent treatment records from Dr. Awan. 3. Schedule a VA examination to determine nature and etiology of the claimed neck disability, including cervicalgia. The VBMS and Virtual VA electronic claims, including any new information obtained as a result of these instructions, must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disability should be identified. After completing the examination and reviewing the relevant records, the examiner should respond to this question: Is it at least as likely as not (50 percent probability or greater) that any current disability of the neck, including cervicalgia, had its initial onset in service or is otherwise related to any in-service disease, injury, or event, including the 1990 automobile accident the Veteran described in his hearing testimony? The examiner should provide a complete rationale for his or her opinion. The examiner is advised that the Veteran is competent to provide information about events and symptoms he personally experienced, including the claimed 1990 in-service automobile accident. The examiner is further advised that the absence of contemporaneous in-service treatment records for a neck injury, standing alone, is not a rationale sufficient to justify an unfavorable opinion. 4. Schedule the Veteran for a TBI examination to be conducted by a physiatrist, psychiatrist, neurologist, or neurosurgeon. All pertinent symptomatology, findings and clinical manifestations must be reported in detail. All appropriate studies, including additional neuropsychological testing, if indicated, should be performed. Following review of the claims file, the examiner is requested to respond to the following questions: a) Is it at least as likely as not (a 50 percent probability or more) that the Veteran has any symptoms and/or residuals of in-service TBI, including headaches? Any and all residuals and/or impairment should be delineated? b) Are any claimed residuals of TBI are attributable to other disabilities, or are more likely unrelated to an incident of service and are of post service onset? c) A complete rationale must be provided for all opinions. The examiner is requested to discuss prior medical evidence in detail and reconcile any contradictory findings. If the examiner's opinion is that the Veteran did not experience a TBI event in service or that no current residuals of in-service TBI exist, the examiner's should explain how to he or she has reconciled these conclusions with the Veteran’s hearing testimony, in which the Veteran said that he injured his head in an automobile accident in 1990 and described what appears to be a post-injury loss of memory (“Because when I was hit that morning, when the security police came, I was sitting there trying to find my driver's license and had no idea I had already given him my driver's license. I told him, I can't find my driver's license. He said, sarge, I got your driver's license”) and has experienced head pain since then. The examiner is advised that the absence of contemporaneous in-service medical records documenting the accident or post-accident injuries is not, by itself, sufficient to justify an unfavorable conclusion. 5. The AOJ must carefully review the examination reports and opinions requested above and ensure that they comply with the directives of this remand. If any report is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.