Citation Nr: 21011417 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-02 133 DATE: March 1, 2021 ORDER An initial rating of 40 percent, beginning April 29, 1995, for loss of the use of the right foot with loss of the right heel pad, fixation of the right calcaneus, pes planus and hallux valgus involving the right foot is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to a total disability based upon individual unemployability (TDIU) prior to June 30, 2008, to include on an extraschedular basis is remanded. FINDING OF FACTS 1. The June 1995 rating decision initially granting service connection for the Veteran’s loss of the right heel pad, fixation of the right calcus, pes planus and hallux valgus specifically stated that a complete copy of the Veteran’s service medical records were not received. 2. An October 2012 rating granted service connection and assigned a 40 percent rating, effective January 18, 2011, for loss of use of the right foot. The rating decision combined that disability with the already service-connected disabilities and recharacterized the disability as loss of right heel pad, fixation of right calcus, pes planus and hallux valgus. 3. In February 2014, during the course of the appeal, the Veteran submitted relevant service treatment records for his right foot disability and requested readjudication of the June 1995 rating decision for assignment of an earlier effective date for the 40 percent disability rating. A June 2015 rating decision denied the claims of earlier effective date for service connection of the Veteran’s right foot disabilities. 4. Prior to July 2017 rating decision assigning a new effective date for the Veteran’s 40 percent rating for loss of his right foot but following the June 1995 rating decision, the Veteran submitted relevant official service department records that existed and had not been associated with the claims file when it previously decided the claim. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 40 percent, beginning April 29, 1995, for loss of the use of the right foot with loss of the right heel pad, fixation of the right calcaneus, pes planus and hallux valgus involving the right foot have been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.155, 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1987 to April 1995. These matters were previously before the Board and were denied in an October 2017 decision. The decision was appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2019 the Court issued a memorandum decision vacating the Board’s October 2017 rating decision and remanding both issues. In February 2020 and August 2020, the Board remanded the claims for additional development. The Board is satisfied that there has been substantial compliance with the August 2020 remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial rating in excess of 10 percent disabling from April 29, 1995 to June 30, 2008 for loss of the use of the right foot with loss of the right heel pad, fixation of the right calcus, pes planus and hallux valgus The Veteran contends that he is entitled to an initial 40 percent rating for his right foot disability. In a June 1995 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection and assigned a 10 percent rating for status-post open reduction internal fixation of the right heel, effective April 29, 1995. The June 1995 rating decision specifically stated that the Veteran’s complete service medical records were not received. In an October 2012 rating decision, the AOJ granted service connection and assigned a 40 percent rating, effective January 18, 2011, for loss of use of the right foot. The AOJ combined that disability with the already service-connected right foot disabilities and recharacterized the disability as “loss of right heel pad, fixation of right calcus, pes planus and hallux valgus.” In a July 2017 rating decision, the AOJ found CUE in the October 2012 rating decision and changed the effective date to June 30, 2008, for the 40 percent disability rating (the date the Veteran submitted a claim for increased rating). In February 2014, the Veteran, through his representative, submitted approximately 300 pages of service treatment records (STRs) that were not previously associated with his claims file. Additionally, the representative petitioned the AOJ to readjudicate the effective date for the assignment of the Veteran’s 40 percent rating for the loss of his right foot. The determination of the effective date of an award is generally governed by 38 U.S.C. § 5110(a), which states that, “[u]nless specifically provided otherwise..., the effective date of an award based on an original claim [or] a claim reopened after final adjudication... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” Section 3.156(c) may apply in cases in which VA receives certain records after it has already issued a decision on a claim. Under 38 C.F.R. § 3.156(c)(1), “if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.” As part of the regulation, the Secretary has included a non-exhaustive list of records that could constitute official service department records. Id. However, the applicability of this regulation is tempered by subsection (2), which provides that § 3.156(c) “does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim” or because the claimant did not “provide sufficient information for VA to identify and obtain the records.” 38 C.F.R. § 3.156 (c)(2). “An award made based all or in part on the records identified by paragraph (c)(1)... is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later.” 38 C.F.R. § 3.156 (c)(3). The Veteran filed an original claim for service connection for a right foot disability that was received December 1994. The June 1995 rating decision that granted service connection specifically noted that the Veteran’s complete service medical records were not received. The Veteran did not file a notice of disagreement, and additional evidence was not received within one year of the June 1995 rating decision. Nevertheless, the June 1995 rating decision did not become final as discussed below. The Board determines that an earlier effective date is warranted under 38 C.F.R. § 3.156(c) in this case because the AOJ received relevant official service department records that existed and had not been associated with the claims file when VA previously decided the claim in June 1995. The additional service treatment records (STRs) were received on February 14, 2014; following the issuance of the June 1995 rating decision granting service connection but prior to the July 2017 rating decision that granted an earlier effective date. It is clear from a review of the STRs in question that they are relevant to the service connection claim and document the extent of the Veteran’s injury during service, to include the loss of his heel pad from his in-service injury. In assigning the effective date in both the October 2012 and July 2017 rating decisions, the AOJ relied on the STRs that document the extent of the Veteran’s in-service injury to his right foot. Significantly, these service records were not previously part of the claims file at the time of the previous rating decision and, therefore, they fall under the umbrella of newly submitted official service department records referred to in 38 C.F.R. § 3.156(c)(1). The STRs in question were created while the Veteran was in service, and there is no indication here that these records would not have been obtainable due to a lack of cooperation or identifying information on part of the Veteran. Accordingly, the June 1995 rating decision did not become final and he is entitled to the benefit of an earlier effective date under 38 C.F.R. § 3.156(c)(3) with respect to this previously decided claim. For these reasons, an April 29, 1995, effective date is warranted; the effective date of the grant of service connection for the initial disability. The STRs added to the record after the initial rating decision document the extent of the Veteran’s right foot injury in service and mirror the findings of the August 2008 VA examination relied upon by the AOJ is assigning the 40 percent rating. April 29, 1995 is the earliest possible effective date as it is the day following separation from active service. See 38 C.F.R. § 3.156(c), 38 C.F.R. § 3.400(b)(2). In conclusion, the Board finds that the Veteran is entitled to an effective date of April 29, 1995, for the grant of service connection for loss of use of his right foot. REASONS FOR REMAND Entitlement to TDIU prior to June 30, 2008, to include on an extraschedular basis is remanded. The Veteran contends that his service-connected disabilities prevent him from obtaining and following substantially gainful employment. The Veteran submitted an application for TDIU in February 2011. In an October 2012 statement, the Veteran specifically raises the issue of TDIU on an extraschedular basis. The Veteran was granted TDIU in January 2016 rating decision effective January 18, 2011. A July 2017 rating decision granted TDIU from June 30, 2008, the date he met the schedular requirements for TDIU under 38 C.F.R. § 4.16. The Veteran also receives Social Security Administration (SSA) disability benefits, due to his service-connected disabilities. The examiner for SSA benefits opined that the Veteran’s ability to work is impaired as to sitting, standing, moving about, lifting, carrying, handling objects, and traveling. However, even with the above grant of an earlier effective date for a 40 percent disability for the Veteran’s foot disability, he still does not currently meet the schedular criteria for TDIU prior to June 30, 2008 (combined rating is 50 percent). As the Board cannot decide extraschedular TDIU claims in the first instance, the TDIU claim is referred to the Compensation Service Director for consideration of extraschedular consideration. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). The matters are REMANDED for the following action: Refer the claim of entitlement to TDIU to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.