Citation Nr: 21065343 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 09-36 372 DATE: October 25, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities from July 30, 2008, to December 4, 2014, is granted. REMANDED Entitlement to a compensable rating for bilateral pes planus and plantar fasciitis prior to September 3, 2009, is remanded. Entitlement to a rating in excess of 30 percent for bilateral pes planus and planter fasciitis from September 3, 2009, to December 4, 2014, is remanded. Entitlement to a rating in excess of 50 percent for bilateral pes planus and plantar fasciitis from December 5, 2014, is remanded. Entitlement to a TDIU prior to July 30, 2008, is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities from July 30, 2008, to December 4, 2014. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, from July 30, 2008, to December 4, 2014, the criteria for entitlement to a TDIU due to service-connected disabilities have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1979 to May 1981 and from April 1984 to October 1985. He also served in the United States Army Reserves, to include a period of active duty for training (ACDUTRA) from May to August 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which initially denied service connection for a bilateral foot impairment. Thereafter, in a December 2014 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for bilateral pes planus and bilateral plantar fasciitis (claimed as a bilateral foot condition) and assigned a noncompensable rating (zero percent) from August 1, 2007, a 30 percent rating from September 3, 2009, and a 50 percent rating from December 5, 2014. In December 2012 and May 2021, the Veteran testified at Board hearings before the undersigned Veterans Law Judge (VLJ). Transcripts of these hearings are associated with the claims file. In a December 2018 decision, the Board denied entitlement to increased ratings for the Veteran's bilateral pes planus and plantar fasciitis and entitlement to a TDIU prior to December 5, 2014. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court granted the parties' (the Veteran and the Secretary of VA) Joint Motion for Remand (JMR), which vacated and remanded the December 2018 Board decision. In the JMR, the parties agreed that the Board provided an inadequate statement of reasons or bases for its decision. As an initial matter, the Board notes that in May 2021, more than 90 days after certification of the appeal to the Board, the Veteran indicated that he wished to revoke representation of his appointed attorney as to these issues. See May 2021 Report of General Information. In August 2021, VA contacted the Veteran to clarify whether he was revoking his previous power of attorney (POA). In September 2021, the Veteran stated that he was no longer represented by his former attorney and wished Disabled American Veterans (DAV) to be his only representative. See September 2021 Report of General Information. To date and since the Veteran's revocation of his attorney, the claims file does not contain a written motion for a request for a change in representation nor a new VA Form 21-22 appointing a new representative as to these issues. Additionally, the Veteran has not provided any good cause for his request for change in representation. See 38 C.F.R. § 20.134(b). The Board notes that a POA may be revoked at any time, and that an agent or attorney may be discharged at any time. 38 C.F.R. § 14.631 (f)(1). As such, while the Board honors the Veteran's revocation of his appointed attorney, the Board does not accept, at this juncture in the appeal, the change in representation to DAV as to the issues herein. Therefore, the Veteran is considered currently unrepresented as to the issues in this decision. The Board also notes that the Veteran's former attorney noted that the Veteran indicated he was entitled to an earlier effective date for the award of service connection for bilateral pes planus and plantar fasciitis. See July 2020 Correspondence. In July 2018, VA issued a Statement of the Case (SOC) addressing the issue of entitlement to an effective date prior to August 1, 2007, for the award of service connection for bilateral pes planus and plantar fasciitis. The Veteran did not submit a timely substantive appeal regarding this earlier effective date issue, and it is not otherwise on appeal before the Board. Accordingly, the Board will not address this issue in this decision. Entitlement to a TDIU due to service-connected disabilities from July 30, 2008, to December 4, 2014 The Veteran contends that his service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment for the appeal period. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, because entitlement to a TDIU was raised during the pendency of the Veteran's increased rating claims, to include his initial increased rating claims for his service-connected bilateral pes planus and plantar fasciitis, his claim for TDIU is part and parcel of that initial service connection claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board will consider whether a TDIU is warranted for the appeal period from that date. Accordingly, for the appeal period prior to December 5, 2014, the Veteran is service connected for the following disabilities: (1) obstructive sleep apnea (rated as 50 percent disabling form July 30, 2008); (2) bilateral pes planus and bilateral plantar fasciitis (rated as noncompensable from August 1, 2007, to September 2, 2009, and 30 percent disabling from September 3, 2009, to December 4, 2014); (3) status post right forehead cystic lesion surgery and residual disfiguring scar (rated as 10 percent disabling from January 12, 1990, and 30 percent disabling from August 30, 2002); (4) anal fistula with recurring peri-anal abscess associated with hemorrhoids (rated as 10 percent disabling from October 11, 2011, to May 1, 2017); (5) chronic sinusitis (rated as noncompensable prior to May 25, 2010, 30 percent disabling from May 25, 2010, to April 23, 2013, and 50 percent disabling from April 24, 2013, to October 31, 2017); (6) temporomandibular joint (TMJ) condition of both sides of the jaw (rated as 10 percent disabling from July 30, 2008, to June 14, 2016); (7) status post right forehead cystic legion surgery and residual painful scar (rated as 10 percent disabling from January 12, 1990); (8) tinnitus (rated as 10 percent disabling from February 8, 2000); (9) left ear hearing loss (rated as noncompensable from February 8, 2000); (10) hemorrhoids (rated as noncompensable from June 26, 2003); and (11) fracture nose residuals (rated as noncompensable from August 1, 2007). As such, from July 30, 2008, to December 4, 2014, the Veteran meets the schedular criteria for a TDIU. The Board notes that for the appeal period prior to July 30, 2008, the Veteran does not currently meet the schedular criteria for a TDIU. Turning to the evidence of record, the Veteran has not worked during the pertinent appeal period. Specifically, the evidence shows that the Veteran stopped working in approximately 2000. See December 2009 VA Vocational Rehabilitation and Employment Counseling Narrative Report (reflecting that the Veteran's last employment was in 2000); April 2010 VA treatment record (reflecting the Veteran was unemployed for 9 years). He previously worked as a truck driver and a mechanic. The evidence also reflects that he completed his General Educational Development (GED) and attended technical training courses, to include in air condition mechanical work. See December 2009 VA counseling narrative report; May 2021 Board hearing transcript, p. 12. The Veteran contends that his service-connected disabilities have impacted his ability to work and testified during the December 2012 and May 2021 Board hearings that, for the appeal period, he has not been physically qualified for the jobs in which he has training and background experience. For example, he reported that he cannot be a truck driver because he is unable to pass a required hearing test due to his service-connected left ear hearing loss. See December 2012 Board hearing transcript, p. 38. He also reported that he experienced problems while working with his chronic sinusitis and chemical smells that made him feel nauseous. See id. at p. 41. He further confirmed that the pain from his service-connected bilateral pes planus and plantar fasciitis disability impaired his ability to stand for prolonged periods of time and impacted his ability to press pedals when driving a truck. See May 2021 Board hearing transcript, p. 15. The Veteran's former attorney also argued that the Veteran's service-connected bilateral pes planus and plantar fasciitis limited his ability to stand and walk while his service-connected sleep apnea, chronic sinusitis, tinnitus, and TMJ disorder caused issues with concentration, communication, and fatigue. See July 2020 Correspondence. The other evidence of record also reflects that the Veteran's service-connected disabilities impacted his ability to work. In this regard, in December 2009, a VA Vocational Rehabilitation and Employment Counselor noted that the Veteran's employment history was unstable and that the Veteran had no abilities to perform work that would not exacerbate his service-connected and non-service-connected disabilities. Specifically, the counselor noted that the effects of the Veteran's service-connected disabilities restricted employability in an identifiable, measurable, and observable way by limiting his ability to compete for suitable employment with similarly circumstanced non-disabled persons because of mobility, physical activity restrictions, and limitations. A May 2010 VA Vocational Rehabilitation and Employment Counselor also found that the Veteran had vocational impairments due to his service-connected disabilities and that achievement of a vocational goal was not reasonably feasible. Specifically, the Veteran was found to lack any transferable work skills and that his physical problems precluded the use of any skills that he did have. The VA Counselor also found that the Veteran had a serious employment handicap, that his service-connected disabilities materially contributed to his employability impairments, and that he lacked skills to compete for jobs. In February 2011, a VA Vocational Rehabilitation and Employment Officer concurred with these conclusions, noting that given the Veteran's service-connected disabilities, the achievement of a vocational goal was currently infeasible. Although the Officer described impairments related to non-service-connected psychiatric symptoms, the Officer also listed reported impacts from the Veteran's service-connected disabilities, including that the Veteran's chronic sinusitis problems are so bad that he is unable to work around certain chemicals, and that he has difficulty distinguishing sound when there is background noise due to his service-connected left ear hearing loss. Additionally, a September 2011 Social Security Administration (SSA) disability benefits decision reflects that the Veteran was unable to perform past relevant work and was found to have medically determinable severe impairments, including his left ear hearing loss with tinnitus. Indeed, a June 2009 SSA physical residual functional capacity assessment reflects the Veteran's report that his tinnitus interferes with his sleep. The Board acknowledges that the Veteran is in receipt of SSA benefits for non-service-connected disabilities as well. The VA examinations of record have provided various findings as to whether the Veteran's service-connected disabilities impacted his ability to work. In this regard, some VA examinations during the appeal period, reflect findings that the Veteran's service-connected disabilities, when assessed individually, have no functional impact on his ability to work. See e.g., October 2013 VA sleep apnea examination (indicating that the Veteran's sleep apnea has no functional impact on his ability to work); June 2014 VA audiology examination (reflecting that the Veteran's tinnitus did not impact his ability to work). Additionally, the July 2013 VA examiner found that the Veteran's hemorrhoids and chronic sinusitis should not preclude light duty physical or sedentary employment. Moreover, the June 2014 VA examiner also stated that the Veteran's service-connected conditions should not preclude employment or occupational duties and that the Veteran would have no work restrictions due to his service-connected conditions. The Board notes that the July 2013 VA examiner did not appear to consider the impact of the combination of all the Veteran's service-connected disabilities on his ability to work and that the June 2014 VA examiner did not provide any rationale for his conclusion. As such, these opinions are assigned less probative weight. On the other hand, several VA examinations during the applicable appeal period reflect that the Veteran's service-connected disabilities impaired his ability to work. For example, the January 2011 VA examination reflects that the Veteran's service-connected chronic sinusitis had significant effects on his usual occupation, including that he experienced weakness and fatigue from his symptoms. The February 2012 sinusitis VA examination further shows that the Veteran's chronic sinusitis impacted his ability to work as the Veteran reported an inability to think straight when he could not breathe properly and that the Veteran's symptoms included near constant sinusitis and headaches. The February 2012 anus and rectum VA examination also reflects that the Veteran's service-connected disability impacted his ability to work in that when the Veteran was a mechanic, lifting caused leakage and swelling while the Veteran had frequent, urgent bathroom trips. The June 2012 VA audiology examination further reflects that the Veteran's service-connected tinnitus impacted his ability to work as it reportedly interfered with concentration and that his service-connected left ear hearing loss impacted his ability to work in that it reportedly made it difficult for him to understand speech in background noise. Significantly, the June 2012 VA foot examination reflects that the Veteran's service-connected foot disability impacted his ability to work in that he had constant pain in his feet and was unable to engage in prolonged standing or walking. The October 2013 VA foot examination also shows that the Veteran's service-connected foot disability impacted his ability to work because the constant standing required while working as a mechanic would aggravate the pain in his feet. The December 5, 2014, VA foot examination, further reflects that the Veteran required the constant use of a cane for his bilateral pes planus and plantar fasciitis and that this service-connected disability impacted his ability to work in that he had difficulty standing for prolonged periods of time and walking for long distances. Moreover, the Veteran has also reported that these service-connected disabilities have progressively worsened over the appeal period. In light of the foregoing, the Board finds that the evidence is in equipoise as to whether the Veteran is unable to follow substantially gainful employment as due to his service-connected disabilities from at least as early as July 30, 2008, which is the date the Veteran meets the schedular criteria for a TDIU and the date for which he is also service-connected for sleep apnea and a TMJ condition. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted from July 30, 2008, to December 4, 2014. Although the evidence reflects, that the Veteran has some non-service-connected disabilities that impact his ability to work, including psychiatric, knee, and back disorders, the Board finds that from July 30, 2008, his service-connected disabilities alone preclude his ability to secure or maintain substantially gainful employment. In this regard, both the medical and lay evidence of record reflect that the Veteran's ability to perform physical work had been impaired due to his service-connected disabilities, including his bilateral pes planus and plantar fasciitis impacting his ability to stand for prolonged periods of time and chronic sinusitis resulting in headaches and fatigue. The evidence also indicates that his service-connected disabilities prevent him from performing the requirements of employment in his prior fields as a mechanic and truck driver. To the degree that the Veteran would have been able to perform less physical work, given the Veteran's educational and employment history, the Board finds it unlikely that the Veteran would have been able to obtain and maintain such a position. Indeed, the December 2009 and May 2010 VA Vocational Rehabilitation and Employment counseling narrative records found the Veteran did not have transferrable skills and listed the ways in which the Veteran's service-connected disabilities resulted in a serious employment handicap. While a single, service-connected disability may not have rendered the Veteran unable to obtain or maintain substantially gainful employment alone, the collective impact of all the Veteran's service-connected disabilities reflects a major employment barrier for this period of time. Accordingly, due to the nature and severity of the Veteran's service-connected disabilities and resolving all reasonable doubt in favor of the Veteran, the Board finds that from July 30, 2008, to December 4, 2014, the Veteran is precluded, due solely to his service-connected disabilities, from obtaining and maintaining substantially gainful employment. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The issue of entitlement to a TDIU for the period prior to July 30, 2008, is addressed in the REMAND section below. REASONS FOR REMAND 1. Entitlement to a compensable rating prior to September 3, 2009, a rating in excess of 30 percent from September 3, 2009, to December 4, 2014, and a rating in excess of 50 percent for bilateral pes planus and plantar fasciitis from December 5, 2014. Although further delay is regrettable, upon review of the record, the Board finds that another VA examination is warranted to determine the severity and manifestations of the Veteran's service-connected bilateral pes planus and plantar fasciitis. In this regard, at the most recent VA examination, in January 2018, the VA examiner indicated that the Veteran had diagnoses of bilateral pes planus, bilateral plantar fasciitis, and left foot hallux rigidus. The VA examiner further noted that the Veteran had severe symptoms of left foot hallux rigidus and that the Veteran's hallux rigidus was a progression of his service-connected foot condition. At the May 2021 Board hearing, the Veteran also testified that he believed he had a left foot injury that was separate and distinct from his service-connected bilateral pes planus and plantar fasciitis. See May 2021 Board hearing transcript, pp. 2-5. Based upon review of the record, it is unclear whether the Veteran is entitled to a separate disability rating for his diagnosed hallux rigidus in the left foot. Notably, the Rating Schedule rates flat feet and hallux rigidus under separate Diagnostic Codes. See 38 C.F.R. § 4.72, Diagnostic Codes 5276 (flat feet) and 5281 (hallux rigidus). Additionally, disability ratings may be separately assigned where the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, it is not clear what impairments relate to which foot disabilities. As such, a new examination is necessary to determine the impairments/manifestations associated with the Veteran's foot disabilities. In this vein, it is also unclear whether the Veteran's bilateral plantar fasciitis and bilateral pes planus manifest in separate symptomatology. Here, 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). Relevantly, Diagnostic Code 5269 for plantar fasciitis was added to the schedule of ratings for the musculoskeletal system. Prior to February 7, 2021, plantar fasciitis was not a listed disability and was rated analogously. This is significant as Scott v. Wilkie, 920 F. 3d 1375 (2019) requires the consideration of DC 5284, for unlisted foot conditions, when rating foot disabilities by analogy. In this case, the Board must consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. See 38 U.S.C. § 5110. The criteria that is more favorable to the Veteran will be applied from the effective date of the change. Accordingly, the Board finds that a remand is warranted to identify the symptoms associated with the Veteran's diagnosed bilateral pes planus and plantar fasciitis disabilities and to determine whether his symptoms are distinguishable from each diagnosis, to include whether the Veteran may be entitled to a separate rating for his plantar fasciitis under the old and/or new rating criteria. 2. Entitlement to a TDIU prior to July 30, 2008 As noted above, and as the record currently stands, the Veteran's service-connected disability ratings do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) for the applicable period prior to July 30, 2008. The Board finds that because a decision on the remanded issues could significantly impact a decision on the award of TDIU for the appeal period prior to July 30, 2008, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, a remand of the claim for TDIU is also required. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated August 2020. 2. Then, schedule the Veteran for a VA examination with an appropriate medical professional to assess the severity and manifestations of the Veteran's service-connected bilateral pes planus and plantar fasciitis. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. The examiner is asked to respond to the following: (a) Identify all foot conditions during the period on appeal (i.e., from August 2007), other than bilateral pes planus and plantar fasciitis, to include hallux rigidus in the left foot. (b) For each identified foot disability (other than bilateral pes planus and plantar fasciitis), to include hallux rigidus in the left foot, opine whether it is at least as likely as not (50 percent probability or greater) that such had an onset during active service or is otherwise related to active service? (c) For each identified foot disability (other than bilateral pes planus and plantar fasciitis), to include hallux rigidus in the left foot, opine whether it is at least as likely as not (50 percent probability or greater) that such is (1) caused by OR (2) aggravated by the Veteran's service-connected bilateral pes planus and plantar fasciitis? If aggravation is found, the examiner should quantify the degree of aggravation, if possible and state whether there was an increase in disability regardless of permanence, but medically ascertainable. (d) The examiner must identify all symptoms associated with each of the Veteran's service-connected pes planus, plantar fasciitis, and any other identified foot disorders. If the examiner cannot separate/distinguish the symptoms of the pes planus, plantar fasciitis, and any other identified foot disorders, the examiner must state the basis for such conclusion. Otherwise, the examiner must identity the separate symptoms for the disorders. A complete rationale should be provided for all opinions. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.