Citation Nr: 21071304 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-30 396 DATE: November 30, 2021 ORDER Entitlement to service connection for bilateral Charcot foot deformities, to include advanced arthritic degeneration in the left foot, as secondary to service-connected diabetes mellitus is granted. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for right Charcot foot is dismissed as moot. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The Veteran's bilateral Charcot foot deformities, to include the advanced arthritic degeneration in the left foot, are proximately due to his service-connected diabetes mellitus, type II. 2. Given the Board's decision with respect to the Veteran's claim for service connection for bilateral Charcot foot deformities, his claim for compensation under the provisions of 38 U.S.C. § 1151 for right Charcot foot as a result of care received as the VA Medical Center in Minneapolis, Minnesota is rendered moot. CONCLUSION OF LAW 1. The criteria for service connection for bilateral Charcot foot deformities, to include the advanced arthritic degeneration in the left foot, as secondary to service-connected diabetes mellitus, type II are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for right Charcot foot is dismissed as moot. 38 U.S.C. §§ 1151, 7105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1982 to January 1992. The Board notes that the issues of entitlement to service connection for diabetes mellitus, type II, and peripheral neuropathies of the bilateral upper extremities and bilateral lower extremities are pending in the Appeals Modernization Act (AMA) system. Those issues have been addressed in a separate decision. I. Service Connection The Veteran contends that his bilateral foot disorders are directly related to his military service. Alternatively, he claims that they are secondary to his diabetes mellitus. Initially, as noted in the introduction, the issue of entitlement to service connection for diabetes mellitus is addressed in a separate AMA decision. In that decision, the Board determined that service connection was warranted for diabetes mellitus, type II, as secondary to the Veteran's service-connected hepatitis C. In May 2018, the Veteran underwent a VA examination, and he reported that his bilateral foot symptoms began in the 1980s during service. The examiner then noted that the Veteran had been a diabetic for 30 years, and that he had significant problems with his feet. The examiner then provided a diagnosis of diabetic foot pathology including shackle joint right side. The examiner then indicated that the Veteran's Charcot foot deformity had a clear association with his long-standing diabetes mellitus, and that it was secondary to his diabetes mellitus In June 2018, the AOJ sought a clarifying opinion. With respect to the Veteran's diagnoses, the examiner noted that the right foot has confirmed Charcot foot, but that his left foot disability was diagnosed only as advanced arthritic degeneration. Nevertheless, the examiner concluded that the left foot was likely an early Charcot manifestation. The examiner reasoned that, given the Veteran's complaint and treatment for right foot problems during service, the formation of Charcot foot in the right was likely accelerated, which was why the left foot had not progressed at the same speed. Thus, the examiner concluded that the changes in left foot were Charcot related given that the degenerative changes were noted in the midfoot. The examiner went on to note that the Veteran had long-standing diabetes mellitus with significant insulin resistance and bilateral Charcot foot deformities, and concluded that his current Charcot foot deformities were a bilateral condition that was due to his diabetes mellitus. The Board further notes that Veteran's VA treatment records repeatedly associate his Charcot foot deformities with his diabetes mellitus, type II. Thus, upon review of the record, the evidence supports a finding that that the Veteran's current bilateral Charcot foot deformities, to include the advanced arthritic degeneration in the left foot, are secondary to his now-service-connected diabetes mellitus, type II. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral Charcot foot deformities, to include the advanced arthritic degeneration in the left foot, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. II. 38 C.F.R. § 1151 Claim Insofar as the Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for right Charcot foot as a result of care received as the VA Medical Center in Minneapolis, Minnesota, the Board notes that the section in question provides for compensation for a disability "as if" it were service-connected. In other words, it creates an alternate means of attaining benefits attendant to service connection in the absence of entitlement to full service connection. However, as indicated above, service connection for bilateral Charcot feet has now been awarded. Therefore, no additional monetary or ancillary benefit can be gained under § 1151. Accordingly, that claim is rendered moot, and is therefore dismissed. REASONS FOR REMAND Given the Board's decision above awarding service connection for the Veteran's bilateral Charcot foot deformities, to include advanced arthritic degeneration in the left foot, the AOJ must now assign a disability rating for this disability in the first instance. Given the Veteran's contention that his bilateral foot disabilities, along with his other service-connected disabilities, prevent him from obtaining and maintaining substantially gainful employment, the assignment of initial disability ratings for those disabilities is inextricably intertwined with the issue of entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matter is REMANDED for the following action: 1. Assign a disability rating and effective date for the Veteran's service-connected bilateral Charcot foot deformities, to include advanced arthritic degeneration in the left foot. (Continued on Next Page) 2. Then, readjudicate the Veteran's claim for a TDIU. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.