Citation Nr: 21021601 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 20-09 363 DATE: April 13, 2021 REMANDED Entitlement to disability ratings higher than 10 percent prior to February 7, 2019, and 30 percent thereafter for bilateral plantar fasciitis and metatarsalgia with left foot arthritis (previously rated as left foot arthritis) is remanded. Entitlement to an initial disability rating higher than 10 percent prior to February 7, 2019 for bilateral plantar fasciitis with metatarsalgia (now rated as bilateral plantar fasciitis and metatarsalgia with left foot arthritis) is remanded. Entitlement to an effective date earlier than April 12, 2018 for the increased disability rating of 10 percent for traumatic arthritis of the left foot at the first metatarsal pip joint is remanded. Entitlement to an effective date earlier than April 12, 2018 for the grant of service connection for bilateral plantar fasciitis with metatarsalgia is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1976 to February 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in which the Veteran was granted service connection for bilateral plantar fasciitis with metatarsalgia and assigned a 10 percent rating, effective April 12, 2018; and an increased disability rating of 10 percent was assigned for left foot traumatic arthritis, effective April 12, 2018. The Veteran perfected an appeal of the assigned ratings and effective dates for these claims. During the pendency of the appeal the RO issued a series of rating decisions impacting the increased rating claims on appeal. In a June 2019 rating decision, the RO increased the assigned rating for left foot traumatic arthritis to 50 percent, effective February 7, 2019; and continued the 10 percent rating for bilateral plantar fasciitis. In a September 2020 rating decision, the RO found a clear and unmistakable error (CUE) in the assignment of a 50 percent rating for left foot traumatic arthritis in the June 2019 rating decision, because the increased rating was based on bilateral involvement but there was only unilateral involvement. 38 C.F.R. § 4.73, Diagnostic Code 5276. As such, the RO reduced the disability rating for left foot arthritis to 30 percent, effective February 7, 2019; and continued the 10 percent rating for bilateral plantar fasciitis. In a December 2020 rating decision, the RO found a CUE in the September 2020 rating decision that did not combine bilateral plantar fasciitis with left foot arthritis because the issues rated separately constitutes pyramiding, which violates VA regulations. Notably, both left foot arthritis and bilateral plantar fasciitis were assigned disability ratings under 38 C.F.R. § 4.73, Diagnostic Code 5276. See October 2018, June 2019, and September 2020 Rating Decisions. As such, in the December 2020 rating decision, the RO combined bilateral plantar fasciitis and left foot traumatic arthritis into a single disability evaluation, effective February 7, 2019 the date of the TDIU claim. Based on the foregoing, the Board has recharacterized the increased rating claims, as reflected on the title page. The Veteran claims he has been unable to work since December 2018 due to his service-connected traumatic arthritis of the left foot and bilateral plantar fasciitis disabilities. See November 2020 Third Party Correspondence. As such, the Board has assumed jurisdiction of TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As a final preliminary matter, the Board notes that a December 2020 VA examination related to the Veteran’s claims was associated with the claims file after the claims were certified to the Board in March 2020. Generally, evidence submitted after the statement of the case must be reviewed by the agency of original jurisdiction (AOJ), unless the AOJ review is waived by the Veteran. Here, in a January 2021 letter the Veteran was notified of the additional evidence, and in March 2021 correspondence the Veteran waived initial AOJ review. As such, the Board will proceed with its review. 1. Entitlement to disability ratings higher than 10 percent prior to February 7, 2019, and 30 percent thereafter for bilateral plantar fasciitis and metatarsalgia with left foot arthritis is remanded. 2. Entitlement to an initial disability rating higher than 10 percent prior to February 7, 2019 for bilateral plantar fasciitis with metatarsalgia is remanded. As discussed in the introduction, effective February 7, 2019, the RO combined bilateral plantar fasciitis with metatarsalgia and left foot arthritis into a single disability. See December 2020 Rating Decision. Prior to this date, the service-connected disabilities were evaluated separately. The Veteran was last afforded a VA Foot Examination in December 2020. Diagnoses of bilateral plantar fasciitis and metatarsalgia and left foot arthritis were provided. On examination, there was evidence of pain, bilateral flatfoot with swelling, metatarsalgia, functional loss and limitation of motion, bilateral tenderness to palpation along the plantar heels, and regular use of an assistive device. While the evidence of record contains several references to the Veteran’s bilateral plantar fasciitis, metatarsalgia, and left foot arthritis, it does not distinguish between the symptomatology attributable to each service-connected condition. The Board is precluded from differentiating between symptomatology attributed to a service-connected disability and nonservice-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). For this reason, the case must be remanded for a medical opinion which differentiates between each service-connected condition pathology and symptomatology, to the extent possible. 3. Entitlement to an effective date earlier than April 12, 2018 for the increased disability rating of 10 percent for traumatic arthritis of the left foot at the first metatarsal pip joint is remanded. 4. Entitlement to an effective date earlier than April 12, 2018 for the grant of service connection for bilateral plantar fasciitis with metatarsalgia is remanded. 5. Entitlement to a TDIU is remanded. The Board finds that earlier effective date and TDIU claims are inextricably intertwined with the increased rating claims being remanded herein, as the outcome of these claims may impact earlier effective date and TDIU claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Therefore, adjudication of earlier effective date and TDIU claims must be deferred. The matters are REMANDED for the following action: 1. Arrange for a clinician with appropriate experience to review the Veteran’s VA claims folder. The reviewer should attempt to distinguish symptomatology which is attributable to the Veteran’s service-connected bilateral plantar fasciitis with metatarsalgia and that which is attributable to service-connected left foot arthritis or other diagnosed foot disability. If the reviewer believes that diagnostic testing or an interview with the Veteran is necessary, such should be arranged. If the reviewing clinician cannot distinguish among various foot condition symptomatology, this should be indicated. A report should be prepared and associated with the Veteran’s VA claims folder. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.