Citation Nr: 21073589 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 11-28 338 DATE: December 9, 2021 REMANDED Entitlement to service connection for a bilateral foot disability is remanded. For the period prior to August 4, 2010, entitlement to an evaluation in excess of 20 percent for a lumbosacral spine disability is remanded. For the period beginning on August 4, 2010, entitlement to an evaluation in excess of 40 percent for a lumbosacral spine disability is remanded. For the period prior to May 18, 2018, entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the Army National Guard from 1991 to 2014, including a period of active duty for training (initial entry training) from August 7, 1991 to December 18, 1991, and a period of other active service under title 32 from September 24, 2005, to October 21, 2005. See DPRIS DD 214, received August 2018 at p.31, 56, and 80 of 81. The Board notes that she has achieved "veteran" status due to the incurrence of a service-connected lumbosacral spine disability during a period of annual training in 2007. See Rating decision, February 2009; Personnel records, January 24, 2008 (two separate files showing orders and duty status determination); 38 U.S.C. 101(2) and (24)(B). Annual training (AT) in the National Guard constitutes active duty for training (ADT) service. See 38 U.S.C. § 101(22)(C); see also 38 C.F.R. § 3.6(c)(3) (2020). These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to a TDIU is part and parcel to the initial rating claim for the Veteran's lumbosacral spine disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also Rating decisions, August 2019 and December 2020. 1. Entitlement to service connection for a bilateral foot disability The Veteran contends she has a bilateral foot disability due to her active service. As noted above, the Veteran had a period of active duty for training in the National Guard from August 7, 1991 to December 18, 1991, and another period of active service under title 32 from September 24, 2005, to October 21, 2005. Service connection is generally available for disabilities resulting from injury or disease incurred in or aggravated by "active military, naval, or air service" - including disability due to diseases or injuries incurred or aggravated in the line of duty during a period of active duty for training (ADT), and disability due to injuries incurred or aggravated in the line of duty during a period of inactive duty for training (IDT). See 38 U.S.C. § 1110, 101(24)(B)-(C). "Active duty for training" (ADT) for members of the Army National Guard of any state is defined in 38 U.S.C. § 101(22)(C) as including full-time duty under sections 316 (rifle instruction of civilians), 502 (annual training), 503 (field exercises), 504 (National Guard schools), and 505 (Army and Air Force schools and field exercises) of title 32. See also 38 C.F.R. § 3.6(c)(3) (2020); Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Inactive duty for training" (IDT) generally includes duty other than full-time duty prescribed for Reserves or the National Guard of any state (e.g., weekend drills). 38 U.S.C. § 101(23) (2012); 38 C.F.R. § 3.6(d) (2020). For veterans who have achieved "veteran" status through a particular period of service, and who claim service connection for a disability incurred during a subsequent period of ADT or IDT, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service." Smith v. Shinseki, 24 Vet. App. 40, 4546 (2010). In other words, the presumption of soundness would not apply to the later periods of ADT or IDT without an entrance or enlistment examination. The first record of complaint is a June 2004 private treatment record that shows the Veteran reported bilateral foot pain due to bunions, worse when she wears her boots in the National Guard. See Records, received October 2009 at p.21 of 23; Records, received April 1, 2008 at p.13 of 30. A July 2004 physician order reflects the Veteran was advised not to wear boots for six months. See Records, received April 1, 2008 at p.21 of 30. A January 2005 record notes that the physician filled out paperwork because the Veteran was still or again unable to wear boots for National Guard duty. See Records, received April 1, 2008 at p.13 of 30. January 2005 private podiatry records show diagnosed bilateral hallux abductovalgus, and that the Veteran underwent a right bunionectomy. See Records, received March 2008 and p.10 of 11; Records, received July 2016 at p.11 and 30 of 91; Records, received October 2009 at p.10 of 23. An August 2007 sick slip (National Guard) notes the Veteran was experiencing bunion pain, but was nevertheless ordered to duty for two days, although it was noted that she was permitted to take intermittent breaks. See Records, received January 24, 2008 at p.1 of 2. A June 2015 VA podiatry record shows the podiatrist noted "pes planus foot type," and left hallux abductovalgus was diagnosed. See CAPRI, received January 2019 at p.223 of 269. The Veteran was afforded a May 2018 VA examination, and a June 2019 VA medical opinion was obtained by a different VA examiner. The May 2018 VA examination report shows the Veteran reported bilateral foot pain and bone changes in her great toes began during basic training and progressively worsened. The examiner diagnosed bilateral pes planus, 2015, noted as "mild," and bilateral hallux valgus, 2004. See Report at p.14 of 15. The RO's request for the May 2018 VA examination erroneously noted that the Veteran served in the Army from 1991 to 2014. With these erroneous facts, the May 2018 VA examiner opined that the Veteran's bilateral hallux valgus was related to her active service. No opinion was provided for the diagnosed pes planus. A July 2019 VA medical opinion from a different examiner was obtained, which shows she opined that the hallux valgus "clearly and unmistakably preexisted service and was not aggravated by service," but did not provide an adequate rationale. No opinion was provided for the pes planus. In November 2019, the Board remanded the claim for a new VA medical opinion. A February 2021 VA medical opinion shows the examiner opined that it is less likely than not that the Veteran's foot conditions are related to her active service. The examiner reasoned in part that the hallux valgus was not shown until 15 years after the Veteran's period of active service in 1991. Regarding the pes planus, the examiner reasoned in part that the November 1996 examination record showed a normal foot exam, and the January 2006 examination record showed the Veteran's arches were noted as normal. Unfortunately, before a decision can be made on the claim, the Board finds a remand is required to obtain an addendum VA medical opinion. The February 2021 VA medical opinion appears to rely on the Veteran only having active service in 1991, but her service records show she also had a period of active service under title 32 from September 2005 to October 2005 but this was annotated as "state controlled." However, her retirement credits report from her National Guard service indicates she earned several days of active duty points (i.e., annual training) in all but four annual periods from January 1992 to January 2009, and that she earned several days of IDT points (i.e., weekend drills) in all but one annual period from January 1992 to January 2013. See Personnel records, received October 31, 2013 at p.1 of 3. As noted above, she reported to her private physician in June 2004 that her boots in the National Guard were worsening her foot condition, and the August 2007 sick slip shows she complained of bunion pain and was accommodated with breaks. Service connection may be awarded for disability resulting from injury or disease incurred or aggravated in the line of duty for periods of ADT service, such as periods of annual training in the National Guard. Therefore, the Board will remand the claim for a new VA medical opinion to address whether the Veteran's bilateral foot conditions constitute disability due to injury versus disease, and whether they were caused or aggravated in the line of duty during the Veteran's periods of annual training between 1992 and 2009, or during her periods of IDT, such as weekend drills, between 1992 and 2013. 2. For the period prior to August 4, 2010, entitlement to an evaluation in excess of 20 percent for a lumbosacral spine disability 3. For the period beginning on August 4, 2010, entitlement to an evaluation in excess of 40 percent for a lumbosacral spine disability A February 2009 rating decision granted service connection for the Veteran's lumbosacral spine disability, which is currently assigned a 20 percent rating prior to August 4, 2010, and 40 percent thereafter. The Veteran appeals the initial ratings. See NOD, October 2009; Form 9, October 2011. Most recently, a November 2019 Board decision granted higher ratings for the Veteran's lumbosacral spine disability on a schedular basis, and remanded entitlement to higher ratings on an extraschedular basis to the agency of original jurisdiction (AOJ) for referral to the C&P Director for extraschedular consideration. In that decision, the Board cited a February 2014 correspondence from the Veteran's attorney who contended that an extraschedular rating was warranted for the Veteran's back disability because of severe pain that amounted to functional ankylosis. The Board applied the three-step analysis in Thun v. Peake, 22Vet. App.111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir., 2009). Referral for extraschedular consideration was warranted based on the Veteran's August 4, 2010 private evaluation by the Social Security Administration (SSA). Although the Veteran did not exhibit ankylosis of the spine, her range of motion was shown to be well below the required 30 degrees that would warrant a 40 percent rating. In addition, it was noted that the Veteran could not toe and heel walk, squat, or rise. As such, the Board found that the first Thun element was satisfied. In March 2021, the C&P Director considered whether a TDIU was warranted (for the period prior to May 18, 2018) on an extraschedular basis, but no extraschedular consideration was provided for the individual issues of entitlement to higher ratings for the lumbosacral spine disability. At this time, the Board will not consider possible additional diagnostic codes or secondary service connection as compliance with remand instructions is required. Therefore, the Board will again remand the claims so that they may be referred to the C&P Director for extraschedular consideration. 4. For the period prior to May 18, 2018, entitlement to a TDIU The Veteran is currently assigned a TDIU rating effective May 18, 2018. She seeks entitlement to a TDIU for the period prior to May 18, 2018. For the period prior to May 18, 2018, the Veteran was service connected for the following disabilities: lumbosacral spine disability (20 percent from August 12, 2007, and 40 percent from August 4, 2010), and Guillain-Barré Syndrome (noncompensable). Prior to May 18, 2018, her combined ratings were 20 percent from August 12, 2007, and 40 percent from August 4, 2010. For the period prior to May 18, 2018, because no single disability is rated as 60 percent disabling, nor is any single disability rated as 40 percent disabling with a combined rating of 70 percent or greater, the schedular criteria for a TDIU are not met for this period. See 38 C.F.R. 4.16. Most recently, a November 2019 Board decision remanded the claim for referral to the C&P Director for extraschedular consideration. In March 2021, the C&P Director determined that entitlement to a TDIU for the period prior to May 18, 2018, on an extraschedular basis was not warranted. However, the issues of entitlement to higher ratings for the Veteran's service-connected lumbosacral spine disability are being remanded herein (for extraschedular consideration) and should higher ratings for the lumbosacral spine disability be awarded, this could bring the Veteran's ratings to meet the schedular criteria for a TDIU. Therefore, the Board defers decision on the TDIU claim as intertwined with the lumbosacral spine rating claims being remanded herein. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion to provide clarification as to address whether it is "at least as likely as not" (probability of 50 percent or more) that the Veteran's bilateral foot conditions, including hallux valgus and pes planus, were caused or aggravated in the line of duty during her: a) Active duty for training (initial entry training) from August 7, 1991 to December 18, 1991; b) Annual training between 1992 and 2009; or c) Weekend drills between 1992 and 2013. Also, ask the VA examiner to address whether each foot condition, including hallux valgus and pes planus, constitutes an injury, a disease, or a congenital defect that is stable and not subject to worsening over time. Direct the examiner's attention to the Veteran's retirement credits record from the National Guard showing credits for active duty between 1991 and 2013 (e.g., initial entry training in 1991, title 32 service in 2005, and annual training), as well as credit for inactive duty for training (e.g., weekend drills). See Personnel record, received October 31, 2013 at p.1 of 3; see also DPRIS DD 214, received August 2018 at p.31, 56, and 80 of 81. Also, direct the VA examiner's attention to the Veteran's June 2004 complaint of foot pain from her boots, the July 2004 doctor's order not to wear boots for six months, the January 2005 right bunionectomy, the August 2007 sick slip noting bunion pain, and the more recent June 2015 VA podiatry record noting "pes planus type foot." See Records, received October 2009 at p.10 and 21 of 23; Records, received April 1, 2008 at p.13 and 21 of 30; Records, received January 24, 2008 at p.1 of 2; CAPRI, received January 2019 at p.223 of 269; Records, received March 2008 and p.10 of 11; Records, received July 2016 at p.11 and 30 of 91. Explain to the VA examiner that the opinion must address aggravation and consideration of the time and nature of the periods of training versus activities as a civilian including work in factories, insurance sales and as a prison corrections officer. Any opinion must be accompanied by a complete rationale. (continued next page) 2. Refer the Veteran's claim for higher ratings for her lumbosacral spine disability to the Director of Compensation for extraschedular consideration pursuant to 38 C.F.R. §3.321. See Board decision, November 2019. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Juliano, 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.