Citation Nr: 21032878 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-19 127A DATE: May 28, 2021 ORDER Entitlement to an earlier effective date of July 1, 2007 for the 30 percent rating assigned for status post cholecystectomy is granted. Entitlement to an initial rating in excess of 30 percent for status post cholecystectomy is denied. Entitlement to an earlier effective date of October 4, 2016 for a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 10 percent for left foot plantar fasciitis with calcaneal spurs is remanded. Entitlement to a rating in excess of 10 percent for right foot plantar fasciitis is remanded. Entitlement to an effective date prior to October 4, 2016 for TDIU is remanded. FINDINGS OF FACT 1. The Veteran has at least as likely as not had severe symptoms as result of his status post cholecystectomy since the effective date of service connection for the disability. 2. A 30 percent rating is the highest rating available under the VA Rating Schedule for status post cholecystectomy. 3. The Veteran has met the schedular percentage requirements for TDIU since October 4, 2016, and the combined functional impairment resulting from his service-connected disabilities has at least as likely as not prevented him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him since that date. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of July 1, 2007 for the 30 percent rating assigned for status post cholecystectomy have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.114, Diagnostic Code 7318. 2. The criteria for an initial rating in excess of 30 percent for status post cholecystectomy have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7318. 3. The criteria for an earlier effective date of October 4, 2016 for TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an earlier effective date of July 1, 2007 for the 30 percent rating assigned for status post cholecystectomy is granted. As an initial matter, the Board finds the Veteran's appeal of the rating assigned for status post cholecystectomy relates back to the initial rating assigned for the disability, even though the appeal has been previously referenced as an increased rating claim. The Board notes a July 2007 rating decision initially granted service connection for status post cholecystectomy with an initial noncompensable rating, effective July 1, 2007. In October 2007, the Veteran filed a timely notice of disagreement (NOD) appealing the initial rating assigned for status post cholecystectomy. The Agency of Original Jurisdiction (AOJ) then issued a statement of the case (SOC) in December 2008, after which the Veteran perfected his appeal by filing a timely substantive appeal (VA Form 9) in January 2009. Yet, the AOJ issued a subsequent rating decision in October 2009, granting an increased 10 percent rating for status post cholecystectomy, effective May 29, 2009, and erroneously noting "the action is considered a total grant of the benefit sought on appeal." Nevertheless, the Veteran filed a second timely NOD in September 2010, resulting in the issuance of a second SOC in July 2011 despite the lack of a prior final decision regarding his perfected appeal of the initial rating assigned for status post cholecystectomy. The record reflects the Veteran filed a second substantive appeal (VA Form 9) in October 2011, which the AOJ apparently rejected as being untimely filed with respect to the July 2011 SOC, resulting in the Veteran's March 2012 filing being adjudicated as an increased rating claim rather than being related back to his initial appeal of the July 2007 rating decision, which, as previously noted, was perfected by the January 2009 substantive appeal filed in response to the December 2008 SOC. In sum, the Board finds there has not been a final decision since the initial rating for status post cholecystectomy was assigned due to the Veteran's perfected appeal of the July 2007 rating decision with any remaining residual issue related to the timeliness of the Veteran's second October 2011 substantive appeal being waived in accordance with Percy v. Shinseki, 23 Vet. App. 37 (2009) because it was inappropriate for the AOJ to issue a second SOC in July 2011 in light of the Veteran's previously perfected appeal. As for the merits of the Veteran's appeal, cholecystectomy (removal of the gallbladder) is rated in accordance with 38 C.F.R. § 4.114, Diagnostic Code 7318. Under Diagnostic Code 7318, a noncompensable rating is warranted for residual disability with no symptoms; a 10 percent rating is warranted for residual disability with mild symptoms; and a 30 percent rating is warranted for residual disability with severe symptoms. A staged initial rating is currently assigned for cholecystectomy with it being rated as noncompensable prior to May 29, 2009; 10 percent disabling from May 29, 2009 to November 13, 2019; and 30 percent disabling thereafter. In May 2020, the Board remanded the Veteran's appeal of the rating assigned for status post cholecystectomy for a retrospective opinion in accordance with holding in Chotta v. Peake, 22 Vet. App. 80 (2008) due to his assertion that the symptomatology noted by a December 2019 VA examiner, which led the AOJ to assign a 30 percent rating for the disability, effective November 13, 2019, has been present throughout the appeal period. The AOJ obtained the requested opinion in August 2020 and subsequently determined an earlier effective date was not warranted based on the selected examiner's response; however, the Board finds the probative value of the August 2020 VA examiner's opinion is extremely low because the examination report provides no indication the examiner considered the Veteran's credible and competent lay reports of symptoms since his separation from service or treatment records dated prior to the date of a July 2012 VA examination, which appear to corroborate the Veteran's lay reports. The Veteran has consistently reported experiencing dyspepsia (indigestion), reflux, abdominal pain, and a constant sensation that he feels he needs to vomit after eating since his in-service cholecystectomy. These symptoms are well-documented in service treatment records, post-service VA treatment records, and multiple examination reports during the appeal period. The Veteran's initial April 2007 VA examiner noted the Veteran's reports of such symptoms but did not provide as assessment consistent with the criteria outlined in 38 C.F.R. § 4.114, Diagnostic Code 7318. Similarly, a May 2009 VA examiner noted the same symptoms but did not provide an assessment consistent with the terms used in the applicable criteria. A July 2012 VA examiner was the first examiner to complete a standardized disability benefits questionnaire (DBQ) in the context of the Veteran's appeal. The July 2012 VA examiner concluded the Veteran experienced no symptoms related to cholecystectomy. Yet, a December 2019 VA examiner reported the Veteran experiences severe symptoms due to his cholecystectomy, specifically noting dyspepsia four or more times per week, which appears consistent with the previous examination reports in April 2007 and May 2009. The author of the post-remand, August 2020 opinion simply referenced the July 2012 VA examination report as evidence of a lack of symptoms prior to 2019 without any discussion of the previous examination reports or treatment records, which clearly establish the presence of symptoms related to cholecystectomy from the Veteran's release from active service up until the present. In sum, the Board finds the Veteran's lay reports of his symptoms highly credible given their consistency during the appeal period. The Board is simply unable to reconcile the July 2012 VA examiner's finding of no symptoms with the other evidence of record, to include at least three other examination reports completed during the applicable period that clearly note the Veteran's symptoms from his release from active service up until the present. VA regulations charge the Board with a duty to interpret examination reports in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the assigned rating may accurately reflect the elements of disability present during the applicable rating period. 38 C.F.R. § 4.2. Reconciling the various reports into a consistent picture in this case leads only to a finding that the Veteran has continually experienced symptoms related to his cholecystectomy throughout the appeal period. The only examiner to adequately consider the Veteran's lay reports and provide an assessment consistent with the applicable rating criteria under Diagnostic Code 7318 has determined the Veteran has experienced severe symptoms as result of his status post cholecystectomy. Thus, after resolving the benefit of reasonable doubt in favor of the Veteran, the Board finds the Veteran has at least as likely as not had severe symptoms as result of his status post cholecystectomy since the effective date of service connection for the disability. Accordingly, an earlier effective date of July 1, 2007 for the 30 percent rating assigned for status post cholecystectomy is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to an initial rating in excess of 30 percent for status post cholecystectomy is denied. As previously noted, the highest rating available under Diagnostic Code 7318 is a 30 percent rating. The Board cannot rate the removal of the gallbladder under any other diagnostic code because the disability is specifically listed in the VA Rating Schedule. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The record provides no suggestion the Veteran has impairment that is not contemplated by the VA Rating Schedule. Thus, an initial rating in excess of 30 percent for status post cholecystectomy must be denied. 3. Entitlement to an earlier effective date of October 4, 2016 for TDIU is granted. TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In an October 2020 rating decision, the AOJ granted the Veteran entitlement to TDIU, effective November 13, 2019, based on the date of his most recent formal increased rating claim; however, the Board notes TDIU is an element of the Veteran's appeal of the rating assigned for status post cholecystectomy, which, as discussed above, relates back to the effective date of service connection for that disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU effective date remains on appeal despite the AOJ's intervening award due to the Veteran's previously perfected appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding the effective date of TDIU remains on appeal as an element of previously perfected increased rating claim despite the award of TDIU for a portion of the appeal period). The Board further notes the Veteran has met the schedular percentage requirements for TDIU since October 4, 2016 because he has a combined 70 percent rating with his service-connected unspecified anxiety disorder being rated as 50 percent disabling since that date. The Board also finds the combined functional impairment resulting from the Veteran's service-connected disabilities has at least as likely as not prevented him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him since at least October 4, 2016. Earnings records from the Social Security Administration show the Veteran has not had any employment income since the start of 2016. The record otherwise establishes the functional impairment that led to the AOJ's TDIU award has been present since October 4, 2016, as explained by a vocational expert who provided an opinion regarding TDIU in January 2021, evidence for which the Veteran has waived initial AOJ review. The Board acknowledges the Veteran was awarded an increased rating for his service-connected neck and back disabilities in November 2019, but these disabilities are not the primary drivers of the Veteran's unemployability as explained in the January 2021 private TDIU opinion. The Veteran's ability to perform physical labor is primarily prevented due to his inability to stand for any significant length of time due to his service-connected bilateral plantar fasciitis. Yet, the combination of the Veteran's service-connected psychiatric disability and status post cholecystectomy impair his ability to engage in sedentary work due to daily reclusive behavior and desire to avoid public settings; an inability to remember information, concentrate, and follow through on tasks; unpredictable and debilitating episodes of nausea and regurgitation; difficulty sleeping each night resulting in daily fatigue; and disabling anxiety and depression. The increased functional impairment resulting from his service-connected neck and back disabilities, to include the associated neurological impairment, only amplifies his inability to secure and follow substantially gainful employment. Thus, the Board finds an earlier effective of October 4, 2016 for TDIU is warranted based on the current record, and, to that extent, the Veteran's appeal is granted. The issue of entitlement to an effective date of TDIU prior to October 4, 2016 will be remanded to the AOJ for the reason discussed below. REASONS FOR REMAND The Veteran's appeal of the ratings assigned for his bilateral plantar fasciitis was also previously before the Board in May 2020, when it was remanded for further development; however, the Board finds additional development is now necessary in light of developments since its previous remand. Initially, the Board finds recent changes to 38 C.F.R. § 4.71a, effective February 7, 2021, require additional development regarding the Veteran's appeal of the ratings assigned for his bilateral plantar fasciitis. The Board notes the Veteran's bilateral plantar fasciitis has been rated under Diagnostic Code 5284, which relates to foot injuries not otherwise listed in the VA Rating Schedule; however, the February 2021 changes to 38 C.F.R. § 4.71a resulted in the establishment of a new Diagnostic Code 5269, which specifically relates to plantar fasciitis and provides for a higher rating than currently assigned for the Veteran's disability. Additionally, in a September 2020 written statement the Veteran asserted he has co-existing pes planus with his bilateral plantar fasciitis for which he is not being compensated. In Bailey v. Wilkie, 33 Vet. App. 188 (2021), the United States Court of Appeals for Veterans Claims held that, pursuant to 38 C.F.R. § 3.155(d)(2), it is not necessary for a claimant to file a formal secondary service connection claim for additional complications related to a service-connected disability when such residual complications are reasonably raised by the record during the rating period for the primary disability, explaining VA's duty to maximize benefits requires it to exhaust all schedular alternatives, including entitlement to secondary service connection, when evaluating a disability. In this case, the Veteran's assertion that he has co-existing pes planus with his bilateral plantar fasciitis for which he is not being compensated implicates the holding in Bailey and requires consideration of whether service connection is warranted for pes planus. As discussed above, the Board finds an earlier effective date of October 4, 2016 for TIDU is warranted because that is the date the Veteran meets the schedular percentage requirements for TDIU outlined in 38 C.F.R. § 4.16(a) based on the ratings currently assigned for his service-connected disabilities; however, since the date of claim for the Veteran's appeal of the ratings assigned for status post cholecystectomy and bilateral plantar fasciitis both predate October 4, 2016, the Board finds the TDIU effective date remains on appeal as an element of the appeal of those ratings. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding the effective date of TDIU remains on appeal as an element of previously perfected increased rating claim despite the award of TDIU for a portion of the appeal period). The TDIU effective date issue is inextricably intertwined with the appeal of the ratings assigned for bilateral plantar fasciitis because the assignment of a higher rating could affect the Veteran's TDIU schedular eligibility. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Schedule the Veteran for a new examination to assess the functional impairment resulting from his bilateral plantar fasciitis, to include an assessment under the new rating criteria for plantar fasciitis, effective February 7, 2021, outlined in Diagnostic Code 5269. The selected examiner is also asked to provide an opinion addressing whether the Veteran has pes planus that is at least as likely as not (50 percent probability or greater) proximately due to, or aggravated by, his service-connected plantar fasciitis. The opinion must address causation and aggravation separately to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation above the baseline level of disability. If the examiner finds that the Veteran's pes planus is not secondary to his plantar fasciitis, the examiner must determine whether the symptoms from pes planus can be clearly delineated from the symptoms of plantar fasciitis. If they can be clearly delineated, the examiner must identify which symptoms are due to plantar fasciitis and which symptoms are due to pes planus. 2. Readjudicate the issues on appeal, to include consideration of Diagnostic Code 5269, effective February 7, 2021, and secondary service connection for pes planus, in the context of the Veteran's appeal of the ratings assigned for bilateral plantar fasciitis, as well as the issue of entitlement to TDIU prior to October 4, 2016, as an element of the Veteran's appeal of the initial rating assigned for his service-connected status post cholecystectomy and bilateral plantar fasciitis, providing extra-schedular consideration as necessary for any period in which it is determined that the Veteran does not meet the schedular percentage requirements for TDIU outlined in 38 C.F.R. § 4.16(a). M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.