Citation Nr: 21009821 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-37 488 DATE: February 23, 2021 ORDER Entitlement to an increased rating higher than 30 percent from April 3, 2012, and higher than 50 percent from July 21, 2016, for service connected bilateral pes planus is denied. Entitlement to an initial rating higher than 10 percent for left foot hallux valgus, exclusive of any period of temporary total rating, is denied. REMANDED Entitlement to service connection for a psychiatric disability is remanded. Entitlement to service connection for right foot heel spurs is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) for the period prior to July 21, 2016 is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral pes planus symptomatology does not more nearly approximate pronounced bilateral disability manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, and where the condition is not improved by orthopedic shoes or appliances for the period from April 3, 2012; and the Veteran is in receipt of the maximum schedular rating for bilateral pes planus for the period from July 21, 2016, and there is no indication that he has symptomatology outside that listed in the rating criteria for bilateral pes planus. 2. Exclusive of any period of temporary total rating, the Veteran is in receipt of the maximum schedular rating for left foot hallux valgus, and there is no indication that he has symptomatology outside that listed in the rating criteria for hallux valgus. CONCLUSIONS OF LAW 1. The criteria for an increased rating higher than 30 percent for service connected bilateral pes planus from April 3, 2012, and higher than 50 percent from July 21, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5276. 2. Exclusive of any period of temporary total rating, the criteria for an initial rating higher than 10 percent for left foot hallux valgus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71, DC 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1990 to October 1992 with service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from July 2011 and September 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina which, inter alia and respectively, denied service connection for anxiety and right foot heel spurs, and continued a 10 percent evaluation for bilateral pes planus with hallux valgus. In September 2011, the Veteran filed his notice of disagreement with the denials of service connection for anxiety and right foot heel spurs, and in September 2013, filed his notice of disagreement with, among one other thing, the 10 percent evaluation for bilateral pes planus with hallux valgus. In an October 2013 rating decision, the RO granted a separate temporary 100 percent evaluation for hallux valgus effective November 5, 2009, and a 10 percent evaluation from January 1, 2010, and granted an earlier effective date of October 20, 2008 for the grant of service connection for bilateral pes planus, evaluated as 10 percent disabling. In August 2014, the Veteran was issued a statement of the case, and in October 2014, the Veteran perfected his appeal to the Board. In a May 2016 rating decision, the RO, among other things, granted a rating increase for bilateral pes planus, evaluating it as 30 percent disabling effective July 29, 2015, creating a “staged” rating. In a January 2017 rating decision, the RO, among other things, granted a rating increase for bilateral pes planus, evaluating it as 50 percent disabling from July 21, 2016. In May 2018, the Board remanded the Veteran’s claim for issuance of a supplemental statement of the case after readjudication of the claims considering the evidence received since the August 2014 statement of the case. In an October 2018 rating decision, the RO, among one other thing, granted an earlier effective date for bilateral pes planus, evaluating it as 30 percent disabling from April 3, 2012. In June 2020, the RO denied service connection for a psychiatric disorder, right foot heel spurs, denied a TDIU prior to July 21, 2016, and continued a 30 percent rating for bilateral pes planus for the period from April 3, 2010 to July 21, 2016, and a 10 percent rating for left foot hallux valgus, notifying the Veteran in a supplemental statement of the case. As the supplemental statement of the case that the Board instructed the agency of original jurisdiction (AOJ) to issue was in fact issued, the AOJ complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Following the issuance of the supplemental statement of the case for the pending appeal, and after this matter was certified to the Board, additional medical treatment records were submitted and associated with the Veteran’s claims file. The Board notes that the medical treatment records are duplicative of the medical evidence already associated with the claims file or irrelevant to the Veteran’s claims. Therefore, this evidence is not pertinent to the Veteran’s issues addressed below and remand for initial AOJ review is not required. See 38 C.F.R. § 19.37 (a) (requiring remand for a supplemental statement of the case, unless the additional evidence duplicates evidence previously of record which was discussed in the statement of the case or supplemental statement of the case, or the additional evidence is not relevant to the issue on appeal). Additionally, the Board notes that the Veteran submitted the additional medical records after the appeal was certified and transferred to the Board. Since these records were submitted by the Veteran and his VA Form 9 was submitted after February 2, 2013, waiver of AOJ consideration is not necessary under the law in effect at that time which was subsequently eliminated with passage of the Appeals Modernization Act. See 38 U.S.C. § 7105 (e) (in effect for legacy cases) (providing that waiver of initial AOJ review of evidence submitted by the claimant or his representative to the AOJ or the Board is presumed in cases where the substantive appeal was filed after February 2, 2013). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint, and the criteria for such a rating can be satisfied with lay and other non-medical evidence. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015). This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Bilateral pes planus and hallux valgus The Veteran currently has staged ratings for his service connected pes planus under DC 5276 for flatfoot. His pes planus is rated 10 percent disabling from October 20, 2008, 30 percent disabling from April 3, 2012, and 50 percent disabling from July 21, 2016. DC 5276 provides that a 10 percent evaluation is warranted for moderate bilateral acquired flatfoot (pes planus) disability manifested by weight-bearing lines over or medial to the great toes, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 30 percent rating is warranted for a severe bilateral disability manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. The maximum 50 percent evaluation is warranted for pronounced bilateral disability manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, and where the condition is not improved by orthopedic shoes or appliances. The words “moderate,” “moderately severe,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “slight” and “moderate” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. A March 2013 VA examination report reflects that the Veteran’s bilateral pes planus results in pain in the use of both feet which is not accentuated on use, and which also occurs with manipulation. There was no indication of swelling on use, the Veteran did not have characteristic calluses, and the Veteran did not report extreme tenderness of the plantar surface of either foot. The Veteran’s symptoms were relieved by arch supports. The examination report indicates that the Veteran has decreased longitudinal arch height on weight-bearing, but there was no objective evidence of marked deformity of the foot, or marked pronation of the foot. The weight-bearing line did not fall over or medial to the great toe, there was no lower extremity deformity other than pes planus causing alteration of the weight bearing line, and the Veteran did not have “inward” bowing of the Achilles tendon. The Veteran did not have marked inward displacement and severe spasm of the Achilles tendon, and did not use any assistive devices other than orthotic inserts as a normal mode of locomotion. An August 2014 VA examination report reflected diagnoses of pes planus and associated metatarsalgia, hammer toes, and hallux valgus. The Veteran reported chronic pain in both feet with use and weightbearing, but no flare-ups that impact the function of the foot, and no functional impairment or loss. There was no pain with use of the feet or manipulation, no swelling on use, no characteristic calluses, and no extreme tenderness of the plantar surfaces of either foot. The Veteran did not have decreased longitudinal arch height of either foot, there was no objective evidence of marked deformity of either foot, no marked pronation, the weight-bearing line did not fall over or medial to the great toe, there was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line, the Veteran did not have “inward” bowing of the Achilles tendon of either foot, and the Veteran did not have marked inward displacement or severe spasm of the Achilles tendon on manipulation of one or both feet. The second and third toe of each foot was affected by hammertoe, and the examiner noted mild or moderate symptoms on both feet due to a hallux valgus condition. The examiner noted that there was no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot is used repeatedly over a period of time, and there was no other functional loss during flare-ups or when the foot is used repeatedly over a period of time. In an April 2016 VA examination report, the examining physician noted the Veteran’s reports that his pes planus pain increased, is located in the arch of his feet, and on the top of his big toe on each foot. The Veteran reported flare-ups which caused more pain with prolonged walking or standing. The Veteran reported pain on manipulation of the feet which was accentuated with manipulation, swelling on use, but no characteristic calluses. The Veteran reported use of arch supports and orthotics for both feet with no relief, indicated that he did not have extreme tenderness of the plantar surfaces, but had decreased longitudinal arch height on both feet with weight-bearing. There was no objective evidence of marked deformity of either foot, the weight-bearing line did not fall over or medial to the great toe, there was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line, and the Veteran did not have “inward bowing” of the Achilles tendon of either foot, or marked inward displacement and severe spasm of the Achilles tendon on manipulation. The physician noted mild or moderate symptoms on both feet due to a hallux valgus condition, and excess fatigability, pain on movement, weight-bearing, and non-weight-bearing, swelling of both feet, interference with sitting and standing, and lack of endurance. The physician noted that there was pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when either foot is used repeatedly over a period of time, and there was functional loss during flare-ups or when the foot is used repeatedly over a period of time. In a November 2016 VA examination report, the examining physician noted that the Veteran reported that he cannot stand or walk for extended times, and that he has extreme, almost constant pain in his feet. The physician noted diagnoses of metatarsalgia, hammer toes, bilateral pes planus, and hallux valgus. The Veteran stated that he has to wear shoes that are half a size too large due to the pain and reported being in wheelchair for almost 2 weeks due to foot pain as he could not bear weight. The Veteran reported flare-ups that impacted the function of his foot, stating that the pain flares with excessive standing. The Veteran reported pain with use and manipulation of the feet, swelling on use, but the Veteran did not have characteristic calluses. The Veteran had extreme tenderness of the plantar surfaces on both feet, decreased longitudinal arch height of both feet on weight-bearing, but there was no objective evidence of marked deformity, marked pronation, and the weight-bearing line did not fall over or medial to the great toe. The examination report reflected that there was no lower extremity deformity other than pes planus causing alteration of the weight-bearing line, and the Veteran did not have “inward” bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon on manipulation. The physician noted that the Veteran did not have Morton’s neuroma or metatarsalgia, the Veteran did not have hammer toes, but the Veteran did have mild or moderate symptoms due to his hallux valgus condition. The examination report indicated that the Veteran did not have symptoms due to hallux rigidus, no effect due to acquired pes cavus, no malunion or nonunion of tarsal or metatarsal bones, and no foot injuries or other conditions. The physician noted less movement than normal, weakened movement, pain on movement, weight-bearing and non-weight-bearing, swelling disturbance of locomotion, lack of endurance, and interference with standing. The Veteran reported functional loss during flare ups or when the foot is used repeatedly over a period of time, stating that he cannot walk excessively, or stand for any extended period. The Veteran also reported constant use of a cane. For the period from April 3, 2012 to July 21, 2016, a rating higher than 30 percent for the Veteran’s bilateral pes planus is not warranted. The evidence of record does not reflect that the Veteran’s bilateral pes planus symptomatology more nearly approximated bilateral disability manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, and marked inward displacement and severe spasm of the tendo achillis on manipulation, and where the condition is not improved by orthopedic shoes or appliances. While the April 2016 examination report reflects that the Veteran had decreased longitudinal arch height on both feet with weight-bearing, there was no evidence of marked deformity, marked pronation, “inward bowing”, marked inward displacement, or severe spasm in the March 2013, August 2014, or April 2016 examination reports. The Veteran reported use of orthotics and arch supports, indicating that he remained symptomatic with their use, but also reported no extreme tenderness of the plantar surfaces of either foot. The preponderance of the evidence thus reflects that the Veteran’s service connected pes planus disability does not more nearly approximate the criteria for a higher, 50 percent rating under DC 5276 for the period from April 3, 2012 to July 21,2016. For the period from July 21, 2016, the Veteran’s bilateral pes planus is rated 50 percent disabling, which as previously noted is the highest available schedular rating under DC 5276. As for the higher initial rating claim for left foot hallux valgus, the Veteran currently has a 10 percent rating under DC 5280 for unilateral hallux valgus from January 1, 2010. Unilateral hallux valgus that is severe, if equivalent to amputation of great toe, is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling. 38 C.F.R. § 4.71a. The Veteran thus has the highest available schedular rating under DC 5280 for his service connected hallux valgus. The Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). The Board has a duty to acknowledge and consider all diagnostic codes that are potentially applicable when evaluating a veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). However, the Veteran has been diagnosed with, and is in receipt of service connection for, bilateral pes planus and hallux valgus, disorders that are specifically listed in the Rating Schedule. Thus, rating by analogy is not appropriate in this case. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (“when a condition is specifically listed in the Schedule, it may not be rated by analogy”). The Board notes that the August 2014 examiner diagnosed associated hammertoe and metatarsalgia. With respect to the metatarsalgia and hammer toes, these disabilities are specifically contemplated under pertinent diagnostic codes, specifically DC 5279 (anterior metatarsalgia) and DC 5282 (hammer toe). Therefore, the Board must consider whether these disabilities warrant separate ratings under the applicable diagnostic criteria. See Copeland, 27 Vet. App. at 337-38. DC 5279 provides that metatarsalgia, unilateral or bilateral, warrants a maximum 10 percent rating. 38 C.F.R. § 4.71 (a). While the August 2014 examiner has diagnosed the Veteran with metatarsalgia, the November 2016 physician indicated that the Veteran did not have metatarsalgia, and the Veteran is not service connected for this disability. Additionally, any foot pain and limitation of foot function/motion that may be associated with metatarsalgia is already contemplated by the 10 percent rating under DC 5280. The maximum schedular rating for metatarsalgia under DC 5279 is 10 percent, and a separate rating on the basis of metatarsalgia would constitute prohibited pyramiding in this instance. 38 C.F.R. § 4.14. DC 5282 provides ratings based on hammer toes. Hammer toe of a single toe is rated noncompensable. Unilateral hammer toe of all toes, without claw foot, is rated 10 percent disabling. 38 C.F.R. § 4.71a. The evidence of record does not support a finding that a compensable rating is warranted under DC 5282. While the August 2014 examiner noted a diagnosis of hammertoe, the November 2016 examiner indicated that the Veteran did not suffer from hammer toes. Additionally, the August 2014 examination report reflects that the Veteran’s hammertoes affected only the second and third toe of each foot. The evidence does not demonstrate, nor has the Veteran contended, that he suffers from hammer toe of all toes as contemplated by a 10 percent rating under DC 5282. Therefore, a separate compensable rating is not warranted for hammer toes based upon DC 5282. The Veteran does not have a diagnosis of weak foot, claw foot, and the record contains no evidence of any malunion or nonunion of the tarsal or metatarsal bones, so evaluation under DCs 5277, 5278, and 5283 is not warranted. The Board notes that there is also no diagnosis of plantar fasciitis warranting a rating under the new diagnostic code 5269. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). As the Veteran is currently in receipt of the highest available rating under DC 5276 and DC 5280, and the evidence of record does not indicate that referral for an extraschedular rating is warranted, further discussion as to whether the Veteran’s bilateral pes planus warrants a rating increase higher than 50 percent from July 21, 2016 under DC 5276, and an initial rating higher than 10 percent under DC 5280 is not necessary. REASONS FOR REMAND Psychiatric disorder In a July 2020 letter, the Veteran stated that he began experiencing anxiety during service as he had enlisted during war time and trained to be ready to deploy without knowing whether or not he would ever be deployed. He stated that since service, he has had a terrible time dealing with life and self-medicates to sleep and handle his anxiety. The Veteran’s DD-214 reflects that the Veteran’s military occupational specialty was as a munitions systems specialist, and indicates the Veteran served in Southwest Asia in Desert Shield/Storm. The Veteran’s service treatment records do not reflect any treatment for any psychiatric disability, and his September 1992 medical examination report upon discharge is normal. A December 2009 VA examination report reflects that the Veteran has been admitted to psychiatric facilities related to his anxiety. The examiner noted that the Veteran appeared nervous throughout the examination, and was taking a number of medications for his disability. The Veteran reported feeling uncomfortable around people which affects his ability to work. A January 2010 mental health note reflects a diagnosis of psychosis not otherwise specified (NOS). In an October 2010 statement, the Veteran’s girlfriend reported that the Veteran has displayed erratic behavior to the point that he wants to hurt people. She stated that she gives him his medicine, washes his clothes, fixes his meals, and takes him to his appointments. She stated that the Veteran does not always take care of his personal hygiene, and that his mental state is “over the top.” The Veteran’s girlfriend also reported that the Veteran does not trust anyone, and has no attention level. January 2020 mental health notes indicate the Veteran has a diagnosis of unspecified anxiety, and the health professional reported that the Veteran does not demonstrate signs consistent with psychosis. Right foot heel spurs The Veteran stated in a July 2020 letter that he was provided special boots and inserts during service for his bone spurs during war time while his base was deploying. He stated that he does not have access to his records due to the pandemic. April 1991 service treatment records reflect that the Veteran was treated for continued pain in his heel and was unable to wear the boots required for duty. The Veteran’s September 1992 medical examination report upon discharge is normal regarding his feet, but the Veteran reported foot trouble on his September 1992 report of medical history upon discharge. August 2009 post-service treatment records indicate that the Veteran had a diagnosis of bone spurs. June 2010 post-service treatment records reflect the Veteran had surgery to remove right bone spurs. September 2017 VA treatment records reflect the Veteran has a history of calcaneal spurs. Unfortunately, the Board cannot make a fully-informed decision on the issues of entitlement to service connection for a psychiatric disability and right foot heel spurs because no VA examiner has opined whether the Veteran’s disabilities are related to service. VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury, is a low threshold. McLendon, 20 Vet. App. at 83. Post-service treatment records reflect diagnoses of a psychosis (NOS), unspecified anxiety, and bone spurs, and service treatment records indicate the Veteran was treated for continued heel pain. Additionally, the Veteran has competently reported that he struggled with anxiety during service, fearing he would be deployed for combat. The lay and medical evidence including the Veteran’s competent and credible statements indicate that these disabilities and symptoms may be associated with service. As the evidence of record is insufficient to make an informed decision on the claim, a remand for VA opinions and/or examinations is warranted. TDIU prior to July 21, 2016 The issue of entitlement to a TDIU is a potential part of an initial rating claim when such claim is expressly raised by the Veteran, or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Veteran stated in a February 2019 letter that his TDIU should have been adjudicated to January 1, 2010 to May 1, 2016 which was the effective date of his TDIU. However, the Board notes that the Veteran has been awarded TDIU from July 21, 2016. The issue of entitlement to a TDIU has thus been raised as part and parcel of the claim for a higher rating for bilateral pes planus and hallux valgus. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by VA’s Director of Compensation Service when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § § 4.16 (b). For the period prior to July 21, 2016, the Veteran is in receipt of service connection for bilateral pes planus rated as 30 percent disabling, lumbar degenerative joint disease rated as 10 percent disabling, painful bunionectomy scars rated as 10 percent disabling, left foot hallux valgus rated 10 percent disabling, and osteotomy scars rated noncompensable. Therefore, with the exception of the period that the Veteran has a temporary total disability rating, for the period prior to July 21, 2016, the Veteran has a 50 percent disability rating, and does not meet the criteria for consideration for a TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a). However, under 38 C.F.R. § 4.16 (b) all cases where the veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability should be referred to the Director of Compensation Service. In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” The March 2013 medical opinion that the Veteran’s bilateral foot pes planus would prevent him from working due to his limited mobility substantiates the contention that the veteran is unemployable by reason of his service connected bilateral pes planus. The standard for remand for referral to the Director under 38 C.F.R. § 4.16(b) has thus been met. However, the RO must first adjudicate the remanded claims of service connection for a psychiatric disability and right foot heel spurs, and if the Veteran meets the schedular standard, it should adjudicate the issue of entitlement to a TDIU on a schedular basis prior to July 21, 2016 and remand for referral to the Director only for any period during which the Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a). Prior to adjudication, any appropriate development should be conducted. These matters are remanded for the following development: 1. Obtain and opinion from an appropriate psychiatrist/psychologist to determine the nature and etiology of any psychiatric disability. If an examination is deemed necessary, one should be conducted to include via telehealth if feasible. The psychiatrist/psychologist must opine whether the Veteran’s psychiatric disability is at least as likely as not (at least 50 percent probability) related to service, to include the Veteran’s reports of anxiety during service due to fear of deployment. The Veteran’s claims file must be made available to and reviewed by the psychologist/psychiatrist. The psychologist/psychiatrist is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. All opinions expressed must be accompanied by a complete rationale. 2. Obtain an opinion from an appropriate clinician as to the nature and etiology of the Veteran’s right heel bone spurs. If an examination is deemed necessary, one should be conducted to include via telehealth if feasible. The examiner should indicate whether the Veteran’s right heel bone spurs are at least as likely as not (at least a 50 percent probability) related to an in-service disease or injury, to include the noted treatment for heel pain during service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. All opinions expressed must be accompanied by a complete rationale. 3. After conducting the above and any additional appropriate development, adjudicate the issue of entitlement to a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) for any period prior to July 21, 2016 for which the Veteran meets the schedular criteria, and refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) to the Director of Compensation Service for any period for which he does not meet the schedular standard. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.