Citation Nr: 21012990 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-18 444 DATE: March 8, 2021 REMANDED Entitlement to a rating in excess of 10 percent for the service-connected status post transverse distal osteotomy of third metatarsal of the left foot is remanded. Entitlement to a total disability based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran had active service from January 1977 to January 1980, with Reserve service from May 1980 to September 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the increased rating issue in February 2018 and November 2019. However, the remand directives have not been fully satisfied. As such, the Board will regrettably have to remand this issue again. In a December 2020 Appellate Brief, the Veteran’s representative noted that the Veteran feels that his service-connected disabilities have worsened and are now affecting his ability to work. In addition, the May 2019 VA examiner noted that the Veteran’s service-connected left foot disability affects his ability to perform occupational tasks such as standing and walking for long periods. There is some indication that the Veteran worked in retail, which requires him to perform these occupational tasks. As such, the Board finds that the Veteran has raised a claim for TDIU on an extraschedular basis, as his currently combined disability rating percentage render him ineligible for a schedular TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. § 4.16. The Board also finds that the TDIU claim is part of the claim for increased compensation on appeal. Rating in excess of 10 percent for the service-connected left foot status post transverse distal osteotomy of third metatarsal As previously stated, this matter was previously remanded by the Board in February 2018 and November 2019. In both remands, the Board found that the service-connected status post transverse distal osteotomy of the third metatarsal of the left foot is inextricably intertwined with the Veteran’s other foot conditions and directed the RO to request that the Veteran submit formal service connection claims for the additional foot diagnoses, which included pes planus, plantar heel spurs, varus deformity, and hammertoes. As the Board does not have jurisdiction over the pes planus, plantar spurs, hammertoes, and a varus deformity, these issues were remanded to the RO for further action and development. The February 2018 Remand further instructed the RO to schedule the Veteran for a VA foot examination, but only after the additional service connection claims had been adjudicated. Pursuant to Stegall v. West, 11 Vet. App. 268 (1998), the Board must remand this issue again to ensure strict and substantial compliance with the previous remand directives. The Veteran submitted his claims for service connection for his additional foot disabilities. The VA examinations were also conducted. However, the RO has not yet made decisions on those claims; they are still being adjudicated. In a September 2020 deferred rating decision, the RO acknowledged that the Veteran’s service-connected left foot disability on appeal is inextricably intertwined with his other foot conditions. The RO also noted that a supplemental statement of the case (SSOC) would not be done until the claims were adjudicated. The Veteran has reported symptoms of a throbbing pain in his left foot, which makes it difficult to stand and walk for long periods. He has also reported frequent numbness and occasional paresthesia of the left foot, with occasional muscle spasms. The Board notes, however, that the record shows the Veteran has, at various times, been diagnosed with left foot hammertoes, varus deformity, bilateral pes cavus, bilateral pes planus and plantar heel spurs and that, currently, the Board does not have jurisdiction over such issues. As it was unclear whether these conditions are a progression of the Veteran’s left foot status post transverse distal osteotomy of third metatarsal or are new and separate conditions, the Board requested clarification in the previous remands. The Board also requested that the examiner explain which of the foot symptoms may be attributed to the Veteran’s service-connected left foot disability versus any nonservice-connected foot disabilities. The evidence of record reflects conflicting opinions, for which further clarification is necessary. For instance, a May 2019 examiner stated that “current foot condition is a progression of the diagnosed transverse distal osteotomy, third metatarsal, left foot noted in STRs.” She further noted that, over time, the condition has become chronic. She also explained that the current symptoms are related to the service-connected left foot disability as the other foot disabilities, i.e., pes planus and hammer toes, are unrelated to the service-connected condition and are asymptomatic. These opinions are contradictory. On one hand, the examiner stated that the newly claimed foot disabilities are a progression of the service-connected left foot disability. On the other hand, she indicated that there is no relationship. A February 2020 examiner, who provided an addendum opinion, also noted that the Veteran’s pes planus and hammer toes are asymptomatic and are not related to the service-connected left foot disability. However, the examiner did not acknowledge and account for the Veteran’s reports of symptoms related to his service-connected left foot disability. A January 2021 examiner seemed to indicate that the newly diagnosed foot disorders are not related to service, but the opinion does not explain the relationship, if any, to the service-connected left foot disability. Therefore, on remand, the Board directs a VA examiner to clarify and explain whether the Veteran’s symptoms can be separately attributed to his service-connected left foot disability. In addition, the RO has not issued an SSOC reflecting consideration of evidence presented in the January 2021 VA examinations. Accordingly, a remand is required for the issuance of an appropriate SSOC that considers all VA examinations and opinions, to include the January 2021 VA examinations, and any additional relevant evidence received since the October 2020 SSOC. See 38 C.F.R. § 19.31(b)(3). Extraschedular TDIU The Veteran contends that he cannot work due to his service-connected left foot disability. Because a decision on the claim for increase for the left foot disability could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. The Board will therefore remand the TDIU claim for development and adjudication in the first instance. The matters are REMANDED for the following action: 1. Obtain a clarifying medical opinion from an appropriate VA clinician to distinguish the symptoms that are relevant to the Veteran’s service-connected left foot disability, and to explain whether the Veteran’s newly diagnosed foot disorders, including pes planus and hammer toes, represent a progression of the service-connected left foot status post transverse distal osteotomy of third metatarsal, as indicated by the May 2019 VA examiner. The examiner is asked to review the Veteran’s claims file, make note of such review, and to consider and address all the Veteran’s reports of symptoms. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 2. Take any additional steps deemed necessary with regard to, and then adjudicate, the Veteran’s claim for service connection for a left foot disability other than the service-connected status post transverse distal osteotomy of third metatarsal of the left foot. He should then be notified of this decision and of his appellate rights. 3. Take the steps necessary to develop and adjudicate the issue of entitlement to a TDIU on an extraschedular basis, to include a referral to the Director of Compensation and Pension Services if necessary. 4. After conducting any additional indicated development, readjudicate the issues on appeal, to include consideration of the January 2021 VA examination reports. If either benefit sought on appeal is not granted in full, issue the Veteran and his representative an SSOC. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.