Citation Nr: 21065252 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-18 054 DATE: October 25, 2021 REMANDED 1. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the left first MTP joint and bilateral plantar fasciitis is remanded. 2. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1981 to May 1987, as well as from July 1987 to October 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified before the undersigned Veterans Law Judge; a transcript of that proceeding is of record. Most recently, in December 2020, the Board remanded this matter for further development. The Board notes that the issues of entitlement to service connection for headaches, a right hip disability, and a right knee disability were previously remanded. An August 2021 rating decision granted service connection for these disabilities, along with related conditions. As this represents a full grant of the benefits sought, these issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial ratings or effective dates assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). 1. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the left first MTP joint and bilateral plantar fasciitis is remanded. The December 2020 Board remand directed the RO to provide the Veteran with a new VA examination for his service-connected foot disability in order to clarify the current diagnoses related to the feet. The examiner was asked to determine whether any newly diagnosed conditions were related to the service-connected degenerative joint disease and plantar fasciitis. The examiner was further instructed to opine as to which symptoms were the result of his service-connected disorders and which were related to nonservice-connected conditions. The Veteran was afforded new VA examinations in February 2021 and July 2021. The examiners did not comply with the Board's request. The February 2021 VA examiner did not provide the requested opinions. The July 2021 provided an additional diagnosis of bilateral pes planus that was considered to be unrelated to the service-connected conditions, but he did not make clear which symptoms were the result of the Veteran's service-connected foot disorders and which were related to the nonservice-connected pes planus. Furthermore, the July 2021 examination report did not include an explanation as to whether a delineation of symptoms was impossible, per the Board's remand request. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). As such, a remand is necessary for clarification as to which of the Veteran's symptoms are attributable to the service-connected foot disorders and which are related to the nonservice-connected pes planus, if such distinction can be made. 2. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is intertwined with the claim remanded herein; accordingly, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated.) The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Return the claims file to the examiner who conducted the July 2021 examination, or provide it to another appropriate clinician. The reviewer is asked to separately identify all of the symptoms of the left first MTP degenerative joint disease; all of the symptoms of bilateral plantar fasciitis; and all of the symptoms of the nonservice-connected pes planus. The distinction between the symptoms attributable to each disability should be made clear. If it is not possible to determine which disability causes the symptoms the Veteran experiences, or to draw a distinction between a symptom caused by one of the disabilities from a symptom/s caused by one or the other of the disabilities, that should be made clear. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.