Citation Nr: 21064774 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-47 932 DATE: October 21, 2021 REMANDED Entitlement to an effective date prior to June 20, 2011 for the grant of a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an effective date prior to June 20, 2011 for the grant of Dependents' Education Assistance (DEA) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1971 to March 1974. The Department of Veterans Affairs (VA) is grateful for his service. In September 2020, the Board of Veterans' Appeals (Board) issued a decision denying the above-listed appealed claims. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and by a June 2021 Order the Court approved a Joint Motion for Partial Remand (Joint Motion) of the parties which vacated the Board's September 2020 decision as to the above-listed issues and remanded the case for action consistent with the Joint Motion. In its September 2020 decision, the Board also denied an increased rating for warts of the hands and feet, and the parties to the Joint Motion and the Court did not contest that Board decision, and hence it remains undisturbed. 1. Entitlement to an effective date prior to June 20, 2011 for the grant of a TDIU is remanded. 2. Entitlement to an effective date prior to June 20, 2011 for the grant of DEA is remanded. During the rating interval in question prior to June 20, 2011, as now, the Veteran was service connected for bilateral pes planus with plantar fasciitis of the left foot, warts of the hands and feet or their residuals, and dermatophytosis of the hands and feet with hypertrophic changes of the feet. The parties to the Joint Motion found that the Board had erred by finding that a February 2020 private vocational assessment was of less probative value because it failed to consider non-service-connected disabilities, whereas an assessment of unemployability based on service-connected disabilities under 38 C.F.R. § 4.16 should only consider service-connected disabilities. The Board concludes that a VA medical examination is warranted to retrospectively address the impact on work and work-like functioning of the Veteran's service-connected disabilities for the rating interval prior to June 20, 2011. The Board now observes that the private vocational assessment provided conclusory statements regarding impact of the Veteran's service-connected disabilities on his ability to engage in substantially gainful work activities. The vocational assessment provides no adequate explanation how the Veteran's bilateral pes planus with plantar fasciitis of the left foot, warts of the hands and feet or their residuals, and dermatophytosis of the hands and feet with hypertrophic changes of the feet impacted the Veteran's ability to perform work or work-like activities not requiring significant lifting or significant ambulation, notwithstanding the vocational assessment's conclusion that they would preclude such activity. Upon remand, the medical examiner should also address the question of whether the Veteran likely had "limited ability to concentrate" due to pain associated with his service-connected disabilities, without consideration of pain due to his non-service-connected disabilities such as leg claudication and knee or ankle disability. The examiner should also address the impact of the Veteran's service-connected disabilities on his ability to intermittently lift or briefly carry 5, 10, or 20 pounds. The examiner should also consider the Veteran's self-reports of activities and functioning during the interval in question. The examiner must also address the February 2020 vocational assessment. As pertinently noted by parties to the Joint Motion, the examiner should distinguish, to the extent feasible, impairment and impact on work functioning due to service-connected disabilities from that due to non-service-connected disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (other disabilities which are distinguishable in their symptoms and impacts on functioning from those of the service-connected disability should not have their symptoms and impacts on functioning attributed to the service-connected disability for purposes of assigning a disability rating). As the parties to the Joint Motion noted, the claim for an earlier effective date for DEA benefits is inextricably intertwined with the claim for an earlier effective date for TDIU, and hence the DEA claim must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Schedule the Veteran for an in-person medical examination by an examiner qualified to address the nature, severity, and occupational impairment/limitation due to the Veteran's service-connected bilateral pes planus with plantar fasciitis of the left foot, warts of the hands and feet or their residuals, and dermatophytosis of the hands and feet with hypertrophic changes of the feet. The examiner should carefully review the claims file and conduct a thorough physical examination as well as examination interview. The examiner is to be advised that the focus of the examination is the nature and severity and impact on work capacity of these service-connected disabilities for the rating interval prior to June 20, 2011, but that the examination must also be responsive to a February 2020 private vocational assessment contained within the claims file and hence must include current findings, as these will be necessary to address that February 2020 assessment in an informed manner. The examiner should distinguish, to the extent feasible, impacts on functioning of the Veteran's service-connected disabilities from impacts of non-service-connected disabilities, including any spine disability, peripheral vascular disease including leg claudication, knee disability, ankle disability, psychiatric disability, and polysubstance use, abuse, or dependence. Conditions which are distinguishable should not be considered when evaluating impact of service-connected disabilities on the Veteran's functioning. The examiner must also document and consider the Veteran's own statements regarding his disabilities, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. Beyond addressing the nature of the service-connected bilateral pes planus with plantar fasciitis of the left foot, warts of the hands and feet or their residuals, and dermatophytosis of the hands and feet with hypertrophic changes of the feet and their impact on potential daily functioning including work functioning in various settings prior to June 20, 2011, the examiner should address how prior to June 20, 2011 the Veteran's service-connected bilateral pes planus with plantar fasciitis of the left foot, warts of the hands and feet or their residuals, and dermatophytosis of the hands and feet with hypertrophic changes of the feet impacted the Veteran's ability to perform work or work-like activities not requiring significant lifting or significant ambulation or other significant physical activity. In so doing, the examiner should address how prior to June 20, 2011 the Veteran's service-connected bilateral pes planus and plantar fasciitis and warts on the hands and feet impacted the Veteran's ability to concentrate, and in so doing the examiner should consider the Veteran's self-reports regarding his activities currently and previously including specifically during prior to June 20, 2011. The examiner should note the Veteran's reports during a December 2010 psychiatric evaluation of activities and use of his time, including studies toward a graduate degree, playing computer games, doing crossword puzzles, solving jigsaw puzzles, and playing chess. The examiner should address how prior to June 20, 2011 the Veteran's service-connected bilateral pes planus and plantar fasciitis and warts on the hands and feet impacted the Veteran's ability to ambulate very short, short, or longer distances. The examiner should address how prior to June 20, 2011 the Veteran's service-connected bilateral pes planus and plantar fasciitis and warts on the hands and feet impacted the Veteran's ability to intermittently lift or briefly carry 5, 10, or 20 pounds. The examiner should provide a complete explanation, supported by evidence and medical knowledge, for any opinions and conclusions. (Continued next page) 2. Thereafter, readjudicated the appealed claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.