Citation Nr: 21072611 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-05 797A DATE: December 3, 2021 REMANDED Entitlement to service connection for a spine disability is remanded. Entitlement to a rating greater than 30 percent prior to January 7, 2020 and to a rating greater than 50 percent thereafter for service connected major depressive disorder is remanded. Entitlement to a rating greater than 10 percent for plantar fasciitis of the right foot prior to February 14, 2020 is remanded. Entitlement to a rating greater than 10 percent for plantar fasciitis of the left foot prior to February 14, 2020 is remanded. Entitlement to a rating greater than 30 percent for bilateral acquired pes cavus, previously rated as plantar fasciitis of the right and left foot, from February 14, 2020 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from January 1989 to June 1992. These matters come before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of the hearing testimony has been associated with the claims file. In November 2019, the Board remanded these matters for additional development, which has not been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). REASONS FOR REMAND 1. Entitlement to service connection for a spine disability is remanded. The Veteran seeks service connection for a spine disability. The Board remanded this matter in November 2019 for additional development, to include obtaining opinions addressing whether the back disability is related to service or is due to or has been aggravated by his service-connected bilateral foot disability. In February 2020, opinions were obtained from a VA examiner; however, the opinions are inadequate for rating purposes. Regarding direct service connection, the examiner stated that the back disability is related to a post-service injury. The opinion was based on the Veteran's lay statements. The examiner did not address the Veteran's in-service injury, or provide medical reasons and bases for finding that the current disability was not related to the in-service injury. The examiner also failed to address the June 2019 opinion from the Veteran's VA treating provider, C.L., PA-C. indicating a nexus between the current disability and service. Regarding secondary service connection, the examiner found no relationship between the service-connected bilateral foot disabilities and spine. The examiner based the opinion on the Veteran's current normal gait and nonuse of assistive devices for ambulation. The examiner did not consider the Veteran's medical history or address the May 2012 opinion from the Veteran's VA provider indicating that the Veteran's painful feet caused him to alter his gait and resulted in back pain. On remand, opinions addressing direct and secondary service connection must be obtained which show consideration of the Veteran's medical history and lay statements and the opinions from C.L. and must be supported by sound medical principles and reasoning. 2. Entitlement to a rating greater than 30 percent prior to January 7, 2020 and to a rating greater than 50 percent thereafter for major depressive disorder is remanded. The Veteran seeks increased ratings for his service-connected major depressive disorder. In April 2020 correspondence, the Veteran, through his representative, argued that the RO did not consider all evidence from the Salem VA Medical Center in the April 6, 2020 supplemental statement of the case (SSOC). He indicated that the SSOC showed review of VA medical records dating only through December 2017. The Board observes that treatment records from the Salem VA Medical Center were associated with the electronic claims file on April 6, 2020, dating from 2017 to 2020. However, it is unclear whether these updated records were considered in the SSOC. Accordingly, a remand is warranted to ensure that the RO has considered the evidence in the first instance. 3. Entitlement to a rating greater than 10 percent for plantar fasciitis of the right foot prior to February 14, 2020 is remanded. 4. Entitlement to a rating greater than 10 percent for plantar fasciitis of the left foot prior to February 14, 2020 is remanded. 5. Entitlement to a rating greater than 30 percent for bilateral acquired pes cavus, previously rated as plantar fasciitis of the right and left foot, from February 14, 2020 is remanded. The Veteran seeks increased ratings for his bilateral foot disabilities. Prior to February 14, 2020, the Veteran had separate 10 percent ratings for each foot for plantar fasciitis. Prior to June 4, 2014, his bilateral plantar fasciitis was rated as analogous to metatarsalgia under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5279. In June 2014, the RO changed the code to 38 C.F.R. § 4.71a, Diagnostic Code 5299-5284, and rated plantar fasciitis as analogous to "foot injuries, other." On April 6, 2020, the RO granted service connection and a 30 percent rating for bilateral pes cavus and "closed out" service connection for right and left foot plantar fasciitis. The Board has reviewed the evidence and observes that during the course of the claim, the Veteran has had diagnoses of pes planus, pes cavus, and plantar fasciitis. Pes cavus was documented as early as June 2006 and diagnosed again in February 2020. Pes planus has been diagnosed since at least the January 2013 VA examination. Given the RO's change in Diagnostic Codes, the Board finds it prudent to remand these matters to determine whether the Veteran has had pes cavus or pes planus or both since the date of claim in 2012 and if so, whether either are due to, have been aggravated by, or are a progression of the service-connected plantar fasciitis. If so, the examiner should indicate the date pes planus and/or pes cavus manifested and the severity of the disabilities since that time. Further, effective February 7, 2021, the rating criteria were revised and 38 C.F.R. § 4.71a, Diagnostic Code 5269, plantar fasciitis, was added. On remand, in light of the addition of Diagnostic Code 5269, an examination must be conducted to determine the current severity of the Veteran's bilateral foot disability. 6. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from April 2020 to present. 2. Ask the February 2020 examiner or another qualified clinician to provide opinions addressing the etiology of the Veteran's lumbar spine disability. The examiner must be provided access to the electronic claims file and he or she must indicate review of the file in the examination report. a. For each diagnosis of the lumbar spine, the examiner must provide an opinion indicating whether it is at least as likely as not (50 percent or greater probability) that the disability is related to service, to include the Veteran's report of injuring his back while lifting heavy ammunition during service. The examiner must address the in-service injury and support the opinion with rationale based on sound medical principles and reasoning. The examiner must consider the Veteran's lay statements, medical history, and the opinions from VA provider C.L. b. The examiner must also provide opinions indicating whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected bilateral foot disabilities have caused or aggravated the lumbar spine disability. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. In addressing this matter, the examiner must provide separate opinions addressing causation and aggravation and support each opinion with rationale. The examiner must consider the Veteran's lay statements, medical history, and the opinion from VA provider C.L. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral foot disability. The examiner must be provided access to the electronic claims file and he or she must indicate review of the file in the examination report. The examiner is notified that during the pendency of the claim, the Veteran's VA treatment records have shown diagnoses of pes planus and pes cavus. The examiner is asked to review the Veteran's medical history and to confirm whether the Veteran has had pes planus and/or pes cavus since 2012, and if so, whether the diagnoses are at least as likely as not (50 percent or greater probability) due to, have been aggravated by, or are a progression of the Veteran's service-connected plantar fasciitis. The examiner must provide separate opinions addressing these matters. If the Veteran has pes planus and/or pes cavus that is due to, aggravated by, or a progression of the Veteran's service-connected plantar fasciitis, then the examiner must indicate when the pes planus and/or pes cavus first manifested, and the severity of the diagnosis since 2012. For the above, the examiner is advised that aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. The examiner should provide a full description of the Veteran's plantar fasciitis and any other related diagnosis, such as pes planus and/or pes cavus, and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. A complete rationale must be provided for all opinions. 4. Then, readjudicate the Veteran's claims on appeal, to include the claim for an increased rating for major depressive disorder and entitlement to a TDIU. If the benefits sought on appeal remain denied, provide the Veteran and his representative a SSOC and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.