Citation Nr: 21064276 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-46 949 DATE: October 19, 2021 ORDER Entitlement to a disability rating in excess of 10 percent prior to September 1, 2020 for thoracic spine dextroscoliosis and spondylosis is denied. Entitlement to a disability rating in excess of 20 percent from September 1, 2020 for thoracic spine dextroscoliosis and spondylosis is denied. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to a total disability rating based upon unemployability (TDIU) prior to April 13, 2020 is granted. REMANDED Entitlement to service connection for bilateral plantar fasciitis is remanded. FINDINGS OF FACT 1. Prior to September 1, 2020, the Veteran's thoracic spine disability was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes. 2. From September 1, 2020, the Veteran's low back disability was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes. 3. The preponderance of the evidence is against finding that a bilateral knee disability began during active service or is otherwise related to an in-service injury or disease. 4. The Veteran's service-connected disabilities have prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent prior to September 1, 2020 for thoracic spine dextroscoliosis and spondylosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for entitlement to a disability rating in excess of 20 percent from September 1, 2020 for thoracic spine dextroscoliosis and spondylosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1998 to March 2010. This matter was previously remanded by the Board of Veterans' Appeals (Board) in September 2019. 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 his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The regulations regarding rating back disabilities have been amended during the course of the appeal. In such cases, the version more favorable to the claimant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's increased rating claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 1. Entitlement to a disability rating in excess of 10 percent prior to September 1, 2020 for thoracic spine dextroscoliosis and spondylosis The Veteran's thoracic spine disability is currently rated as a thoracic strain under 38 C.F.R. § 4.71a, DC 5237. This disability is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine ("General Formula"), or as IVDS under the Formula for Rating IVDS Based on Incapacitating Episodes ("IVDS Formula"), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Prior to the regulatory change, the criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. The formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A rating of 10 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, or there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of height. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A rating of 20 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm, or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A rating of 40 percent is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. Id. There are several notes relevant to the rating criteria. 38 C.F.R. § 4.71a. Those pertinent to this appeal are included here. Note (1): Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate DC. Note (2): Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, DC 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 10 percent rating is assigned. When incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past twelve months, a 20 percent rating is assigned. When incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past twelve months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, DC 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. As of February 7, 2021, under the amended criteria, DC 5243, intervertebral disc syndrome, is assigned "only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Veteran had an examination for his thoracic spine disability in October 2016. The Veteran was found to have forward flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation were to 30 degrees. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions without reduced range of motion. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran reported experiencing flare-ups. The Veteran stated that he would have a flare-up if he was sitting in front of a computer for 30 minutes or standing more than 30 minutes. There was no evidence of guarding or muscle spasm. There was no evidence of muscle atrophy. There was no evidence of radiculopathy or other neurological abnormalities. Straight leg raising testing was negative. There was no evidence of ankylosis. The Veteran did not report using assistive devices. There was no evidence of IVDS and no evidence of incapacitating episodes. Based on the foregoing, the preponderance of the evidence is against a finding that an increased rating in excess of 10 percent is warranted for the period on appeal prior to September 1, 2020. The objective evidence does not show that the Veteran's range of motion has been limited to 60 degrees or less of forward flexion or less than 120 degrees combined, nor is there any objective evidence of abnormal spinal contour due to guarding, spasms or other factors. Rather, he has had flexion to 90 degrees. While the Board acknowledges the Veteran's statements concerning additional symptoms such as pain, these are outweighed by the objective evidence from this period which indicates that even with repetitive motion, the range did not go down. In evaluating the Veteran's current level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The Board notes that although the Veteran reported flare-ups at the October 2016 examination, there is no evidence that the Veteran's flare-ups significantly reduced his range of motion to the point that a disability rating in excess of 10 percent is warranted for the period on appeal prior to September 1, 2020. The Board finds that an increased disability rating for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain in this case as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. The Board recognizes that at points during his appeal period, there have been general statements about limited range of motion due to pain. However, there is no evidence that the Veteran's reported back pain amounted to functional loss resulting in forward flexion of 60 degrees or less than 120 degrees combined for the period on appeal. The Board finds that the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish pain, weakened movement, excess fatigability, or incoordination that results in additional limitation of motion to the degree that would warrant an increased rating for the period on appeal prior to September 1, 2020. Based on ranges of motion referenced above, ankylosis (defined as a fixation of the joint) has neither been alleged nor shown. Therefore, there is no basis for a higher rating due to favorable ankylosis of the entire thoracolumbar spine (40 percent), unfavorable ankylosis of the entire thoracolumbar spine (50 percent), or unfavorable ankylosis of the entire spine (100 percent) the General Rating Formula. In addition, consideration has been given as to whether a higher disability rating could be assigned under the General Rating Formula for IVDS Based on Incapacitating Episodes. Here, the Board finds that a higher rating is not appropriate under either the old or revised rating criteria. There is no evidence that the Veteran had a diagnosis of IVDS during the period on appeal. Furthermore, there is no indication in any of the Veteran's records that he had any incapacitating episodes at any time during the appeal period. Thus, the Board finds that a higher disability rating under the General Rating Formula for IVDS Based on Incapacitating Episodes is not appropriate under either the old or new rating criteria. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable DC. 38 C.F.R. § 4.71a, General Formula, Note 1. The Board notes that at no point during the appeal period has the Veteran demonstrated bowel or bladder incontinence. Furthermore, there is no evidence that the Veteran experienced radiculopathy of the lower extremities. Accordingly, no separate neurological rating is warranted for the period on appeal prior to September 1, 2020. As such, the Board finds that a rating in excess of 10 percent for the Veteran's thoracolumbar spine disability is not warranted for the period on appeal prior to September 1, 2020. 2. Entitlement to a disability rating in excess of 20 percent from September 1, 2020 for thoracic spine dextroscoliosis and spondylosis The Veteran contends that his low back disability symptoms were of the severity to warrant a disability rating exceeding 20 percent for the period on appeal from September 1, 2020. The Veteran had an examination for his back condition in September 2020. The Veteran was found to have forward flexion to 45 degrees, extension to 30 degrees, and right and left lateral flexion as well as right and left lateral rotation to 30 degrees. Pain was noted on examination, which resulted in functional loss. There was evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. There was further loss of motion due to pain or other factors after repetitive testing. The Veteran's range of motion was reduced to 40 degrees forward flexion, 20 degrees extension, 25 degrees right and left lateral flexion, and 25 degrees right and left lateral rotation. The Veteran reported flare-ups, noting flare-ups with prolonged sitting and standing. The Veteran reported functional loss from his back disability, noting functional impairment with bending over, as well as with lifting and pulling. The examiner stated that the examination was medically consistent with the Veteran's statements describing functional loss during flare ups and with repeated use over time. The examiner noted that there was a reduction in the Veteran's range of motion with flare-ups or repeated use over time. The Veteran's range of motion was reduced to 40 degrees forward flexion, 20 degrees extension, 25 degrees right and left lateral flexion, and 25 degrees right and left lateral rotation. There was evidence of guarding and muscle spasm not resulting in abnormal gait or abnormal spinal contour. There was no evidence of ankylosis. There was no muscle atrophy. The Veteran did not have a diagnosis of IVDS and did not report any incapacitating episodes. The Veteran was noted to have mild radiculopathy of the right lower extremity. There was no evidence of any other neurological abnormalities. The Veteran stated that he did not use assistive devices. There was objective evidence of pain with non-weight-bearing. Based on the foregoing, an increased rating in excess of 20 percent is not warranted during this period. There is no lay or medical evidence indicating that the Veteran was limited to 30 degrees or less of forward flexion of the thoracolumbar spine during this period. Additionally, there is no evidence indicating favorable ankylosis of the entire thoracolumbar spine at any point during this period. The probative medical evidence of record during this period indicates that the Veteran had range of motion, albeit limited, in all directions. As such, the preponderance of the evidence is against a finding that the Veteran's overall disability picture during this period more nearly approximated that contemplated by a 40 percent rating, which contemplates forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.7, 4.71a, DC 5237. In determining the level of disability during this period, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has complained of pain, flare-ups and limitation of motion. However, the examiner, after considering these subjective reports, found that although there was additional functional loss there was no evidence of ankylosis or reduction in range to forward flexion of 30 degrees or less. As such, the Board finds that the Veteran's statements concerning further limitation due to factors such as pain and other factors are outweighed by the objective findings of the VA examiner. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that the Veteran endorsed the presence of flare-ups. Despite this, the examiner still specifically found that the current low back disability was not manifested by ankylosis of the lumbar spine or forward flexion limited to 30 degrees or less. Accordingly, the Board finds that the Veteran's flare-ups do not, on their own, result in the Veteran's overall disability picture more nearly approximating the level of severity contemplated by a 40 percent rating during this period. 38 C.F.R. §§ 4.40, 4.45, 4.59. No additional higher or alternative ratings under different DCs can be applied for any of the periods on appeal. The Board notes that the Veteran does not have a diagnosis of IVDS, and there is no objective medical evidence of record that the Veteran has at any point been prescribed bed rest for his low back disability. See 38 C.F.R. § 4.71a, DC 5243, Incapacitating Episodes Formula, Note 1. Thus, the Board finds that a higher disability rating under the General Rating Formula for IVDS Based on Incapacitating Episodes is not appropriate under either the old or new rating criteria. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable DC. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, service connection for the Veteran's right lower extremity radiculopathy has already been granted for the period on appeal and therefore is contemplated by that assigned rating. There is no evidence of left lower extremity radiculopathy in the record for the period on appeal from September 1, 2020. Additionally, no other neurologic abnormalities have been noted as being associated with the Veteran's low back disability. As such, additional separate compensable ratings are not warranted at any point during the period on appeal from September 1, 2020. 38 C.F.R. § 4.71a, General Formula, Note 1. The preponderance of the evidence is against a rating in excess of 20 percent for the period on appeal from September 1, 2020, as there is no indication that there has been forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine during that period. 38 C.F.R. § 4.71a, DC 5237. Accordingly, the claim is denied. 3. Entitlement to service connection for a bilateral knee disability The Veteran contends that he is entitled to service connection for a bilateral knee disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran had an examination for his claimed bilateral knee disability in October 2016. The examiner opined that the claimed knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there were no medical records to show that the Veteran was seen in service for knee complaints. Additionally, the examiner noted that the Veteran has not sought any care since that time. The examiner further noted that X-rays were not done to define chronicity of his knee condition. The Veteran had another examination for his claimed bilateral knee disability in September 2020. The examiner opined that it was less likely than not that the Veteran's claimed bilateral knee disability was incurred in or caused by his active service. The examiner noted the Veteran's lay report that he first noticed knee pain in service, and the Veteran's receipt of the Parachutist's Badge. The examiner stated that there were no incidents in service of chronic knee pain nor within one year after separation of service. Additionally, the examiner noted that there were no medical records showing treatment for knee conditions. The examiner opined that the Veteran's knee conditions are due to normal age-related changes. Upon review of the record, the Board finds that service connection for a bilateral knee condition is not warranted. The Board finds the September 2020 examiner's medical opinion to be highly probative because the examiner provided an adequate rationale based on the relevant evidence of record. The examiner noted the Veteran's competent lay statements of record regarding first noticing knee pain in service as well as his receipt of the Parachutist's Badge, and provided an adequate rationale concluding that the Veteran's bilateral knee condition is the result of normal age-related changes. To the extent that the Veteran believes that his bilateral knee condition is linked to his active service, the Board notes that he is competent to provide testimony concerning factual matters of which he has fight-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the question regarding the etiology of his bilateral knee condition is an issue of causation of a medical condition, which requires a medical determination outside the realm of common knowledge of any lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, his lay statements alone are not sufficient to establish the required nexus in this case. The Board must then rely on the available and probative medical evidence, which have found no nexus between the Veteran's bilateral knee condition and his military service. In sum, the evidence preponderates against the claim for service connection for a bilateral knee disability. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection for a bilateral knee disability must be denied. 38 C.F.R. § 3.303. 4. Entitlement to a TDIU prior to April 13, 2020 The Veteran is also seeking entitlement to a TDIU by reporting that he is unable to work due to his service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating. See id. As such, the Board concludes that the matter is appropriately before the Board and may be adjudicated herein. See id. The ultimate determination in a claim for a TDIU is not whether a veteran is unemployed or has difficulty finding employment, but rather, whether he is capable of performing the acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total (100 percent) disability ratings will be assigned "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a). A total disability rating may be assigned under a DC where the DC associated with a disability prescribes a 100 percent disability rating. Additionally, regulations provide other methods by which TDIU may be awarded. TDIU may be assigned to a veteran who is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities," provided that he has received a disability rating of 60 percent or greater, or if he is service-connected for two or more disabilities, at least one of those disabilities has been assigned a disability rating greater than 40 percent, and the combined disability rating for all disorders is at least 70 percent. 38 C.F.R. § 4.16(a). The Board notes that the matter of entitlement to TDIU is moot from April 13, 2020, as the Veteran is, effective as of that date, in receipt of a 100 percent schedular rating and special monthly compensation (SMC) at the housebound rate. However, as the 100 percent rating and grant of SMC were not effective prior to April 2020, entitlement to TDIU remains on appeal for the period on appeal prior to April 13, 2020. The Veteran is service connected for the following disabilities, with the following ratings: major depressive disorder at 70 percent from June 9, 2016, and 100 percent from April 13, 2020; obstructive sleep apnea at 50 percent from March 30, 2010; thoracic spine strain at 10 percent from March 30, 2010, and 20 percent from September 1, 2020; tinnitus at 10 percent from March 30, 2010; psoriasis at 10 percent from March 30, 2010; right elbow ganglion cyst rated as noncompensable from March 30, 2010, and 10 percent from June 9, 2016; right lower extremity radiculopathy at 10 percent from September 1, 2020; and right and left foot plantar heel spur, bilateral foot pes planovalgus, bilateral eye pinguecula, bilateral hearing loss, bilateral maxillary sinusitis, allergic rhinitis, hypertension, and headaches all rated as noncompensable. His total rating is 90 percent disabling from June 9, 2016. Thus, the Veteran currently meets the statutory criteria for a TDIU during the period on appeal prior to April 13, 2020. The Veteran competed a VA form 21-8940 in March 2021. The Veteran indicated that he became too disabled to work in August 2012. The Veteran previously worked in customer service as a cashier, a server, and a salesclerk. The Veteran also reported working as a sitter. Additionally, the Veteran reported attending college, obtaining an associate degree. The Veteran had an examination for his spine disability in October 2016. The examiner opined that the Veteran's back disability did not impact his ability to function. The Veteran had an examination for his sleep apnea disability in October 2016. The examiner opined that the Veteran's sleep apnea disability did not impact his ability to function. The Veteran submitted a July 2018 private assessment from Dr. R.W., which opined that the Veteran's comorbid Major Depressive Disorder with Anxious Distress Features and alcohol use disorder continues uninterrupted to be severe enough to disable and prevent him from sustaining any form of substantial, gainful employment activity. Dr. R.W. noted that the Veteran has chronic sleep impairment and averages five hours of interrupted sleep with sleep apnea and difficulty staying asleep. Dr. R.W. further noted that the Veteran would likely not be able to sustain employment, stating that his "comorbid mental and medical conditions would cause him difficulty concentrating or focusing on work tasks, listening or following directives, handling slightest stressful situations, communicating with others, and unprovoked irritability which may lead to potential conflicts at work." Dr. R.W. further stated that the Veteran's extensive medical disabilities from the service would continuously cause him "chronic pain and severe physical limitations with sitting, walking, lifting, standing, bending, and squatting for prolonged time periods and continuously aggravate his depression, anxiety and psychomotor agitation." Dr. R.W. indicated that the Veteran's mental issues and related chronic sleep impairment would likely cause the Veteran to have attendance problems, tire easy, require more rest breaks than allowed at a normal workplace, have no energy or motivation to perform simple work tasks, and be vulnerable to alcohol self-medication relapses. The Veteran had a mental health examination by Dr. L.C. in February 2018 in the form of a disability benefits questionnaire (DBQ). The Veteran reported that he stopped working in 2015. Dr. L.C. stated that the Veteran's "mental and physical limitations with work are not limited to mood and motivation disturbances; chronic sleep impairment and tiredness; poor social and work task performance; and limited mobility for prolonged periods. The Veteran exhibited symptoms including depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; impairment of short and long term memory; flattened affect; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; impaired impulse control; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Given the totality of the record, the Board finds that the Veteran's service-connected disabilities render him unemployable during the period on appeal prior to April 13, 2020. There is evidence that the Veteran would have difficulty working with others as a result of his service-connected depression disability. The Veteran has poor social skills, memory, and ability to concentrate. Additionally, the Veteran also exhibits symptoms of anxiety, disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting; impaired impulse control; and intermittent inability to perform activities of daily living, which would compound his difficulties interacting with others. Furthermore, the Veteran's poor sleep as a result of his service-connected depression and sleep apnea disabilities would likely increase his difficulties with concentration and memory. The Veteran's limited ability to adapt to stressful situations and work well with others renders him unable to successfully secure and maintain substantially gainful employment. Additionally, the Board notes that the Veteran is not entitled to SMC at the housebound rate prior to April 13, 2020. When a Veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to SMC. 38 U.S.C. § 1114(s)(1). In Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008), the Court stated that a TDIU rating can qualify for compensation at the 38 U.S.C. § 1114(s) rate, but only if the TDIU is based on a single disability. In this case, the evidence demonstrates that the Veteran's unemployability is based on his multiple service-connected disabilities, principally his service-connected psychiatric disability and his service-connected sleep apnea disability. Therefore, the Veteran does not qualify for compensation at the 38 U.S.C. § 1114(s) rate prior to April 13, 2020. Accordingly, the Board finds that the Veteran's service-connected disabilities render him unemployable during the period on appeal prior to April 13, 2020. Thus, the claim for TDIU is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral plantar fasciitis is remanded. The Veteran asserts that he has a current bilateral plantar fasciitis disability that is related to his active service. The Veteran had an examination for his claimed bilateral plantar fasciitis disability in November 2020. The examiner noted that the Veteran did not have a diagnosis of plantar fasciitis. The examiner opined that it was less likely than not that the Veteran's claimed bilateral foot plantar fasciitis was incurred in or caused by the complaints of foot pain and evidence of fasciitis diagnosis during service. The examiner stated that there is insufficient objective medical evidence in the Veteran's medical record of a diagnosis of plantar fasciitis. The examiner further stated that "the Veteran denies knowledge of the same, as well as any foot condition resembling plantar fasciitis. The Board finds the November 2020 examiner's opinion to be inadequate. The Veteran has reported functional limitations and pain and the examination report did not address whether the Veteran's pain resulted in functional impairment of earning capacity. Since pain and evidence of functional impairment of earning capacity can meet the criteria for a current disability, a remand is warranted to consider whether the Veteran's reported symptoms result in such functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate physician to determine the nature and etiology of his claimed bilateral plantar fasciitis disability. The examiner should confirm whether the Veteran has a current bilateral plantar fasciitis disability, to account for his pain. Specifically, the examiner is asked to comment on any functional impairment found due to that pain, (even if not rising to the level of a diagnosable condition). If there is such impairment, the examiner is asked to opine as to the following: Whether it is at least as likely as not (50 percent or better probability) that the Veteran's current bilateral plantar fasciitis functional impairment or diagnosed disability is related to his active service. In forming the opinion, the examiner must discuss the lay statements of record. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Note that the absence of documented medical treatment or diagnosis in the service treatment records cannot serve as the sole basis for a negative opinion. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, Associate 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.