Citation Nr: 21070229 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 14-03 509 DATE: November 23, 2021 REMANDED Entitlement to an evaluation in excess of 30 percent for bilateral bunions with degenerative joint disease of both first metatarsophalangeal joints and bilateral pes planus prior to March 30, 2021, is remanded. Entitlement to an evaluation in excess of 50 percent for bilateral bunions with degenerative joint disease of both first metatarsophalangeal joints and bilateral pes planus on or after March 30, 2021, is remanded. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1982 to October 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2015. A transcript is of record. The Board remanded the case for further development in August 2015, June 2016, July 2018, and September 2020. The case has since been returned to the Board for appellate review. During the pendency of the appeal, in an April 2021 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation for the disability on appeal to 50 percent effective from March 30, 2021. Upon review, the Board finds that additional development is needed prior to adjudication of the issues on appeal. In the September 2020 remand, the Board found that a VA examination was needed to ensure compliance with Correia v. McDonald, 25 Vet. App. 158 (2016). Thereafter, the Veteran was provided a VA examination in April 2021; however, the report did not include the requested range of motion in degrees for both feet in active and passive motion and upon weight-bearing and non-weightbearing. The examiner also did not provide estimations for the range of motion measurements for the prior VA examinations. She stated that she was unable to estimate the degrees due to deformities of pronation, pes planus, and degenerative joint disease of the metatarsals, as well as the Veteran's age and sex. However, it is unclear as to why an estimation cannot be provided due to his age and sex. Therefore, the Board finds that an additional VA examination is needed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). In addition, records from the Social Security Administration (SSA) show that the Veteran reported that he was unable to work, at least in part, due to his feet. See also April 2015 hearing transcript. As such, the Board finds that the issue of entitlement to TDIU has been raised. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Therefore, the AOJ should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected bilateral foot disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating bilateral bunions with degenerative joint disease of both first metatarsophalangeal joints and bilateral pes planus under the rating criteria. In particular, the examiner should state whether the Veteran has severe unilateral or bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. He or she should also indicate whether the Veteran has pronounced unilateral or bilateral pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. In addition, the examiner should indicate whether the Veteran's left and right foot injuries are moderate, moderately severe, or severe and whether there is actual loss of use of the foot. Further, the examiner should provide range of motion in degrees in active motion, passive motion, weight-bearing, and nonweight-bearing for both feet. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also identify and describe any other symptoms and manifestations associated with the Veteran's service-connected foot disability. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors and flare-ups. The examiner should provide estimated range of motion measurements on active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated where not actually measured for the other VA examinations conducted during the appeal period in March 2011, November 2015, and April 2021. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should provide an explanation for this determination in the report. To the extent possible, the examiner should distinguish between the symptoms associated with the service-connected bilateral foot disability and any symptoms associated with a nonservice-connected disorder. If the examiner cannot separate the symptoms, he or she should so state in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. The AOJ should request that the Veteran complete and return a VA Form 21-8940. 3. The AOJ should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disabilities, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the AOJ may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. 4. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, 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.