Citation Nr: 21027317 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 10-49 467 DATE: May 5, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent for service-connected right foot stress fracture residuals (calcaneus) is remanded. Entitlement to an increased rating in excess of 20 percent for service-connected left foot stress fracture residuals (calcaneus) 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 September 1975 to December 1975. This matter originally came before the Board of Veterans' Appeals (Board) from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified at a June 2012 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This matter has previously been remanded by the Board for further development, most recently in June 2017. This matter is again before the Board. 1. Entitlement to an increased rating in excess of 20 percent for service-connected right foot stress fracture residuals (calcaneus) and an increased rating in excess of 20 percent for service-connected left foot stress fracture residuals (calcaneus) are remanded. The Veteran believes that increased ratings for his service-connected feet stress fracture residuals are warranted. See May 2020 Third Party Correspondence. The most recent Board decision remanded the matter for a new VA examination. The examination was instructed to provide details to support its conclusions on whether the service-connected foot disabilities were "moderately severe" or "severe." The required details included commenting on why the other listed level of impairment did not apply. See June 2017 BVA Decision. The examination took place in October 2018. See February 2019 C&P Exam. The examination initially found that the service-connected foot disabilities were each "moderately severe" because the pain was greater than "mild" and because the Veteran did not require pain medications. However, this examination was inadequate because it was based on inaccurate facts. Specifically, the Veteran was on pain medication. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Subsequently, an addendum opinion was provided. It stated that the service-connected foot disabilities were each "moderately severe" and that the Veteran had a long-running prescription for hydrocodone. However, the addendum opinion did not provide details to support its conclusion, including why "severe" impairment was not found. Therefore, the addendum opinion is also inadequate because it did not substantially comply with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The addendum opinion also was unable to determine what level of severity was caused by the service-connected foot disabilities without resorting to speculation. For these reasons, among others, a remand is needed for a new VA examination. 2. Entitlement to a TDIU is remanded. The Veteran believes that a TDIU is warranted. See September 2010 Third Party Correspondence. The Board finds that the TDIU issue is inextricably intertwined with the service-connected foot issues being remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994). As favorable action on the remanded service-connected foot issues could potentially result in the award of a TDIU, the TDIU issue is deferred until the requested development has been completed. Id. The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to April 2020. 2. Ask the Veteran to provide IRS tax returns for the years he claims he has been unable to obtain and maintain substantially gainful employment due to service-connected disabilities (from 2009 to the present) and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 3. Schedule an appropriate VA examination to determine the nature, severity, frequency, and manifestations of the Veteran's service-connected feet stress fracture residuals throughout the entire appeal period (i.e. since March 2009). The need for an in-person examination of the Veteran is left to the discretion of the examiner. This should include, but is not limited to, any muscle injuries and any neurological impairments of the service-connected feet stress fracture residuals. This should also include the impact that the Veteran's service-connected feet stress fracture residuals may have on the Veteran's kidneys, ankles, hamstrings, legs, calves, and toileting. The examiner should also specifically address the functional impact that the Veteran's service-connected feet stress fracture residuals have had on the Veteran's daily life throughout the entire appeal period. The claims file, including a copy of this Remand, should be made available to and be reviewed by the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected feet stress fracture residuals throughout the entire appeal period (i.e. since March 2009). This should include, but is not limited to, any muscle injuries and any neurological impairments of the service-connected feet stress fracture residuals. The severity of any muscle injuries (i.e. slight, moderate, moderately severe, or severe) and the severity of any neurological impairments (i.e. mild, moderate, severe incomplete paralysis, or complete paralysis of the affected nerves) should be assessed. Identify the specific muscle groups associated with any muscle injuries and identify the specific nerves associated with any neurological impairments. This should also include all symptoms and related impairment that would be present without the relief provided by medications used to treat the service-connected feet stress fracture residuals. This should also include the impact that the Veteran's service-connected feet stress fracture residuals may have on the Veteran's kidneys, ankles, hamstrings, legs, calves, and toileting. After a review of the claims file and any examination of the Veteran, the examiner is asked to provide an opinion to the following: (A) Identify all disabilities related to the Veteran's service-connected feet stress fracture residuals since March 2009, even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) The Veteran is also claiming that his service-connected feet stress fracture residuals are impacting his kidneys, ankles, hamstrings, legs, calves, and toileting. Identify all disabilities related to these complaints since March 2009, even if they are currently asymptomatic or have resolved during the pendency of the appeal. (C) For each disability identified, is it at least as likely as not (a 50 percent probability or greater) that the disability is related to or aggravated by the Veteran's service-connected feet stress fracture residuals (including any medications taken for these service-connected disabilities)? For aggravation, state whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (D) For each foot, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected feet stress fracture residuals were "severe" at any point during the appeal period (i.e. since March 2009)? If so, for which periods? If not, the examiner should specifically explain why the service-connected foot disability did not reach the level of being "severe." In addition to the other relevant evidence of record, the examiner is asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) Medical records from 2008 showing bilateral cavovarus feet. The Veteran wore inserts, which helped a little, but was still having a lot of foot pain and was unable to work. He could not really get out and do yardwork and related tasks due to pain. The Veteran had a left foot deformity and surgery to correct it was planned. Medical records from 2009 showed feet pain, bone spurs of both ankles, and pain rated at a 7/10. Medical records from 2010 showed foot pain rated at an 8/10 and that the Veteran could no longer ride his bike due to foot pain. Medical records from 2011 showed mainly constant foot pain rated at an 8/10. Walking and standing for a long time made the foot pain worse. Medication helped to relieve pain. See April 2020 CAPRI. (2) Medical records from 2012 showing sharp, constant foot pain rated at an 8/10, that walking/any physical exercise made it worse, that rest helped, aching pain around the heels and ankles, and that medication helped. Medical records from 2013 showed complaints of progressively worsening feet pain. The Veteran took tramadol. Medical records from 2014 showed bilateral foot pain with a shooting pain, especially when walking; numbness and tingling at times; and that Epson saltwater soaks helped relieve pain. There were left ankle problems, injections for plantar fasciitis, and pain in the anterior aspect of the ankle joint on range of motion and palpation. Left foot dorsiflexion strength was rated at a 4/5. Posterior and inferior calcaneal spurring was present. There was an impression of small mortise joint effusion and degenerative joint disease of the talonavicular joint and the second tarsometatarsal articulation. There was talonavicular joint dorsal spurring with a subchondral cyst. The Veteran also had a twisted left big toe and a probable sprain. Id. (3) Medical records from 2015 showing occasional severe pain in the ankles from a past injury. Medical records from 2016 showed foot orthotics, bilateral foot pain, shoe inserts, and a plan to try gabapentin. Medical records from 2020 showed that the Veteran used hydrocodone for the feet, mild spurring and arthritic changes at some toes and a joint, and that the Veteran had calcaneal spurs. Id. (4) A medical record from 2019 showing pain and tenderness with palpation, walking, or standing. Flare-ups occurred. The Veteran was unable to walk or stand for periods of time. There was pain on movement on weight bearing and on non-weight bearing, disturbance of locomotion, interference with standing, and a lack of endurance. The Veteran was unable to stand or walk without increased pain over the heels. The Veteran was unable to stand or walk due to pain with repeated use over time and during flare-ups. The Veteran was on a long-running prescription for hydrocodone. The Veteran's symptoms had worsened. Further information is provided. See February 2019 C&P Exam. (5) A medical record from 2019 showing that the examiner seemed to suggest that if the pain was greater than "mild" and pain medication was needed, that the disabilities would be considered "severe." The examiner also seemed to be unable to separate the severity of the Veteran's service-connected feet stress fracture residuals with the Veteran's plantar fasciitis. Id. (6) The Veteran's 2016 report of a long history of sedentary problems. There was pain in the heels, ankles, and feet daily, which occurred while sitting, walking, and standing. The intensity of the pain varied daily depending on the amount of exertion. The Veteran had residual pain from the stress fractures in the heels, ankles, and feet daily throughout the appeal period. A majority of the feet problems were from the stress fractures. For months, the Veteran had had problems with hygiene after a bowel movement. He was unable to reach back far enough while sitting on the toilet, and when he stood up, he could not twist and turn on his feet because of the pain it caused in his ankles and feet. The only way to get clean was to take a shower, which was very irritating. See July 2016 Third Party Correspondence. (7) Medical records from 2016 showing that the Veteran used the opioid hydrocodone for the feet. See June 2016 CAPRI. (8) A 2016 report from the Veteran's relative that due to the Veteran's feet, which were getting worse, his balance was bad and worsening. The Veteran had almost fallen and used a cane to help. He was on pain medications due to continuous feet pain. He had to quit his last job as a truck driver because of his feet. See May 2016 Buddy / Lay Statement. (9) A medical record from 2016 showing flare-ups if the Veteran turned wrong, and that the ankle would then swell for three to five days. The Veteran used soft custom orthotics, had pain on palpation, and regularly used a cane for balance. The Veteran had a supinated foot type with a normal to high arch bilaterally. There were mild degenerative changes of the talonavicular joint with small ankle mortise effusion on the left foot. The Veteran had problems with the left ankle joint, right talonavicular joint, and had bilateral plantar fasciitis. Further information is provided. See May 2016 C&P Exam. (10) A 2016 report from the Veteran's relative that the Veteran had to quit work due to foot pain and the inability to keep his balance. He began falling and was a risk to his employer and to himself. The Veteran took pain medication, walked with a cane at times to help keep his balance on uneven surfaces, and was unable to help around the house. See May 2016 Buddy / Lay Statement. (11) The Veteran's 2016 report that he had pain while standing, walking, and sitting. The feet would swell when he drove for a long time. To alleviate foot pain, the Veteran soaked the feet in saltwater about three times per day, used a heating pad with the feet resting on two pillows while sitting in a recliner, and used night splints when the pain was really bad. Shoe inserts helped a little bit when walking. The cane had a minimal effect. The feet were getting worse and the Veteran could not work. The Veteran believed that his bilateral plantar fasciitis, heel spurs, arthropathies, achilles insertional tendonitis, and hamstring tightness were related to his service-connected feet stress fracture residuals. See May 2016 Correspondence. (12) Medical records from 2009 showing tenderness to palpation of the left heel area. See April 2014 CAPRI. (13) Medical records from 2012 showing pain medication for feet pain. See August 2012 Medical Treatment Record. (14) The Veteran's 2012 report of pain being mostly in the feet, including the heels and toes, but pain also occurred in the legs, calves, and ankles. The toes would sometimes draw up. On bad days, which occurred about three times per week, the Veteran would sit around the house in a recliner with his feet on a heating pad or soaking in Epsom salt about three or four times during those days. Generally, the Veteran could only do minor little tasks at home. When the Veteran sat a lot, his feet would swell and cramp, with a charley horse pain in his calves. Any walking caused the feet to swell up. Both feet stayed sore most of the time and were severe. The Veteran talked about his balance problems. He also had pain in the ankles when they would catch like they were locked up and shoot pain all over. He had been on ibuprofen for his feet but had to switch medications due to a kidney stone and the fact that ibuprofen was hard on the kidneys. The Veteran reported a bruise on the right foot after he twisted his foot and felt a pop. Swelling ensued and the next day it was blue and yellow up to the calf. See June 2012 Hearing Testimony. (15) Medical records from 2012 showing a history of bilateral feet pain and swelling, which had progressively worsened. The feet occasionally burned at night. There were problems with balance, especially when standing on uneven surfaces. The top of the feet felt sensitive. See May 2012 Medical Treatment Record. (16) Records from 2009 showing that pain worsened when walking, standing, sitting, and driving for long periods. There was severe swelling after sitting for a long time. There were balance issues and a history of falling. Medications were listed. Even with medication, there were still disabling effects. The Veteran had tried walking with a cane, foot injections, physical therapy, wearing night splints, and wearing a walking boot. Nothing relieved the pain. See May 2012 SSA/SSI Letter. (17) A medical record from 2012 showing that the Veteran took motrin for pain, constantly used orthotics, had daily pain, had problems with walking and standing, had arthritis in multiple foot joints, and had discomfort on palpation. Further information is provided. See February 2012 VA Examination. (18) The Veteran's 2011 report that his feet kept him from working. He could not drive a truck because it caused extreme foot swelling. See April 2011 VA 21-8940. (19) The Veteran's 2010 report that the service-connected feet stress fracture residuals should be rated as at least "severe" because of almost constant pain, the ability to stand or walk for long periods, the inability to run at all, and because of balance problems. It was common sense that such a disability would be severe, especially when it kept someone from working. See September 2010 Third Party Correspondence; December 2010 Form 9. (20) The Veteran's 2009 report of feet and ankle problems; that he could not walk, stand, or sit for long; that he could not run at all; and that he had balance problems. If he was going to sit for a long time, he had to sit in a recliner with his feet elevated on a heating pad. He had bad balance and almost fell a lot for no reason. He had to sit a lot with his feet elevated on a heat pad for some relief. There was constant pain in both feet, and he soaked them in Epsom saltwater two to three times per day for some relief. He was on daily pain medication and slept with the feet elevated on pillows with a heating pad. See April 2009 Statement in Support of Claim; May 2009 Correspondence. (21) A medical record from 2009 showing bilateral soreness of the feet; that the Veteran wore orthotics; that the Veteran required hydrocodone up to three times per day for pain control; and that while working as a truck driver, the Veteran's feet would swell up so much in his boots that it was hard to get them off at night. The Veteran could not handle prolonged walking or standing. The Veteran could not run at all. He had problems on uneven surfaces and tended to fall at times. Using a cane was not a big help. He possibly had arthritis. There was considerable tenderness over the calcaneus bilaterally. Tenderness went up the medial arch to the ball of the foot. The Veteran reported fatigability if he was on his feet much. He had been diagnosed with plantar fasciitis and heel spurs. See April 2009 VA Examination. (22) Medical records showing an acquired cavus deformity of the feet. See November 2008 Medical Treatment Record. (23) Medical records from 2008 showing the Veteran's medications. See November 2008 Third Party Correspondence. (24) All other relevant lay and medical evidence. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. Readjudicate the issues on appeal. The AOJ should consider separate ratings under any diagnostic code or by analogous rating, if warranted by the evidence of record. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.