Citation Nr: 21065485 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 19-11 310 DATE: October 26, 2021 ORDER Entitlement to a compensable rating for residuals of a left foot fracture is denied. A rating greater than 50 percent for bilateral plantar fasciitis is denied. REMANDED Service connection for bilateral lower extremity peripheral neuropathy is remanded. Service connection for special monthly compensation (SMC) based on being housebound and aid and attendance is remanded. Service connection for a condition manifested by dizziness is remanded. Service connection for a right elbow condition is remanded. A total disability due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's residuals from a left foot fracture have not manifested in symptoms separate and distinct from his service-connected bilateral pes planus. 2. Since August 25, 2019, the Veteran's plantar fasciitis was rated at 50 percent, which is the maximum rating available under applicable schedular criteria. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for residuals of a left foot fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6. 4.7, 4.14, 4.71a, Diagnostic Code (DC) 5276. 2. The criteria for a rating greater than 50 percent for bilateral plantar fasciitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6. 4.7, 4.71a, DC 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1975 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions. The Board remanded the claim in December 2020 in accordance with a July 2020 Joint Motion for Remand issued by the United States Court of Appeals for Veterans Claims. The Board finds that there has been substantial compliance with the remand directives with respect to the claims regarding plantar fasciitis and residuals from a left foot fracture. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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). Residuals of a Left Foot Fracture Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran is presently service connected for both plantar fasciitis at 50 percent and avulsion fracture of navicular bone of the left foot at a noncompensable rating. As these two disabilities share similar symptomatology, the question regarding a compensable rating for the Veteran's left foot disability hinges on if the Veteran's left foot disability has separate and distinct manifestations to warrant a separate rating. A May 2021 VA opinion was obtained to answer this very question. The examiner ultimately opined that the Veteran's left foot disability has no symptoms and manifestations that are separate and distinct from the Veteran's service-connected plantar fasciitis. Specifically, the examiner stated that the most recent x-rays of the left foot dated April 2021 do not show any evidence of residuals of a left foot fracture. Rather, the Veteran's current symptoms, according to the examiner, are due to his service-connected plantar fasciitis and degenerative arthritis. Therefore, as there are no separate and distinct symptoms pertaining to the Veteran's left foot disability, a compensable disability rating is not warranted as a rating would constitute pyramiding. Plantar Fasciitis The Veteran is in receipt of the maximum schedular rating available for his service-connected bilateral plantar fasciitis. As a matter of law, he is therefore not entitled to a higher rating. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran does not contend that this disability warrants consideration of a schedular alternative to DC 5276, nor is such reasonably raised by the record. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). Further, in his Informal Hearing Presentation dated August 5, 2021, the Veteran's representative did not present any argument contesting the present 50 percent rating. REASONS FOR REMAND Bilateral Lower Extremity Peripheral Neuropathy As stated previously, the Board remanded the Veteran's claim for bilateral lower extremity peripheral neuropathy in December 2020. Specifically, the Board sought an opinion on whether the Veteran's bilateral lower extremity neuropathy was cause by or aggravated by his service-connected bilateral foot condition. In a May 2021 VA examination, the examiner stated that there was no peripheral neuropathy condition on examination. However, this fails to consider the June 2016 examination that diagnosed a peripheral nerve condition or peripheral neuropathy. Therefore, this opinion is inadequate for adjudication purposes. Further, the Veteran's representative submitted additional argument claiming that the Veteran's bilateral lower extremity peripheral neuropathy is the result of obesity due to the Veteran's service connected mental health and bilateral plantar fasciitis. The Veteran claims that this obesity is an "intermediate step" for secondary service connection. Remand is required to obtain an opinion on such claims. Right Elbow In the December 2020 Board remand, an opinion was requested to address the Veteran's lay statements regarding symptoms of a right elbow condition since service. The Board finds that there has not been substantial compliance with this remand directive and further remand is required for an addendum opinion. In a June 2021 VA opinion, the examiner found that there is no evidence of any residuals. However, this fails to account for the Veteran's lay statements contained in the record that discuss symptoms related to the right elbow since service. Therefore, remand is required to comply with the December 2020 Board remand directives. Dizziness, TDIU, and SMC With respect to the Veteran's claim of service connection for a condition manifested by dizziness, TDIU and SMC, the claims are inextricably intertwined with the claim for service connection for bilateral lower extremity peripheral neuropathy, and service connection for a right elbow disability. The Veteran has claimed that his dizziness condition is related to the medication he takes due to his peripheral neuropathy. As the Veteran's dizziness is claimed to be related to the Veteran's peripheral neuropathy, this claim is inextricably intertwined with the claim for bilateral lower extremity peripheral neuropathy. Regarding the claims for TDIU and SMC, the outcome of the claims for bilateral lower extremity peripheral neuropathy and a right elbow disability could affect the Veteran's eligibility for TDIU and SMC, and, therefore, are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain VA medical opinions to determine the nature and etiology of the Veteran's bilateral lower extremity peripheral neuropathy as diagnosed in the June 2016 VA examination. The examiner must review the claims file, including previous VA examinations, and should note that review in the report. The rationale for all opinions should be provided. The examiner should explicitly provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that any bilateral lower extremity peripheral neuropathy is due to or the result of any service-connected disabilities, including the Veteran's bilateral plantar fasciitis and/or obesity as a result of service connected mental health condition or plantar fasciitis? (b.) Is it at least as likely as not (50 percent or greater probability) that any bilateral lower extremity peripheral neuropathy has been aggravated by any service connected disabilities, including service-connected including the Veteran's bilateral plantar fasciitis and/or obesity as a result of service connected mental health condition or plantar fasciitis? (Continued on the next page) 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current right elbow disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Specifically, the examiner should opine as to whether the injuries documented in service and described in numerous lay statements could have caused the Veteran's currently diagnosed right elbow condition. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.