Citation Nr: 22014065 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 15-06 092 DATE: March 11, 2022 ORDER A disability rating of 10 percent for left heel fracture is granted. For the period prior to March 15, 2018, entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is denied. For the period from March 15, 2018, entitlement to a TDIU as a result of service-connected disabilities is denied as moot. FINDINGS OF FACT 1. Left heel fracture is manifested by a mild disability manifested by functional limitations in climbing stairs and prolonged standing and walking but has not been manifested by a moderately severe disability. 2. For the period prior to March 15, 2018, due to the Veteran's lack of response, there is insufficient evidence in the record to find that he is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 3. For the period from March 15, 2018, a 100 percent rating is in effect for posttraumatic stress disorder (PTSD) and special monthly compensation (SMC) under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i) is in effect. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating for left heel fracture have been met. 38 U.S.C. §§ 1155, 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 2. Prior to March 15, 2018, the criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 3. From March 15, 2018, entitlement to a TDIU is moot. 38 U.S.C. §§ 1114(s), 1155, 5107; 38 C.F.R. §§ 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1967 to November 1969 and from May 2005 to November 2006. He had additional active duty for training (ACDUTRA) in April 1991. These matters came before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for a fracture of the left heel and assigned a noncompensable rating. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2018. A copy of the transcript has been reviewed and associated with the claims file. These matters were remanded in September 2018, November 2020, and July 2021, at which time they were remanded for additional evidentiary development. Increased Rating Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Board has reviewed all the evidence in the Virtual folders, which includes: his contentions, treatment records, C&P examination reports, and lay statements and testimony. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's left heel fracture is rated 0 percent disabling effective September 11, 2012, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284. Diagnostic Code 5284 provides the rating criteria for rating foot injuries. Moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent rating requires moderately severe residuals. Severe residuals of foot injuries warrant a 30 percent evaluation. A 40 percent evaluation requires that the residuals be so severe as to result in actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. A 0 (zero) percent rating is warranted for slight claw foot (pes cavus), acquired, and a 10 percent rating is warranted for unilateral claw foot (pes cavus). 38 C.F.R. § 4.71a, Diagnostic Code 5278. Diagnostic Code 5283 provides the rating criteria for tarsal, or metatarsal bones, malunion of, or nonunion of, which provides for a 10 percent rating for moderate tarsal or metatarsal bones; a 20 percent rating for moderately severe tarsal or metatarsal bones; and, a 30 percent rating for severe tarsal or metatarsal bones. The evaluation of the same "disability:" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). By way of history, the Veteran sustained a left heel fracture during service in April 1991. He was treated with cast immobilization for approximately 4 weeks and was given a number of profiles for limited duty related to left heel pain. A July 2013 C&P examination reflects no objective findings pertaining to the left heel and an indication that he had not sought medical care since service. At the April 2018 Board hearing, the Veteran testified that he feels pulsating and throbbing pain in his heel, particularly if it is cold out. He reported wearing an elastic heel support brace when running. He indicated that he takes Aleve on a daily basis for pain. An April 2019 C&P examination reflects the Veteran's report of pain in the left heel area since the time of injury. He described pain in the posterior half of the left heel on arising in the morning and intermittent episodes of pain with walking distances greater than 2 miles. He also reported increased left heel pain with repetitive stair climbing. He describes the intensity level of the left heel pain is 3/10 when the pain is most severe. The pain is typically 0 at rest. The pain will typically cool down within 24 hours with relative rest and over-the-counter Aleve. He has been wearing a heel orthotic in his left shoe for a number of years. He said the orthotic is made of elastic and a gel material. The Veteran said wearing the heel orthotic helps some with his heel pain. He did not wear the in-shoe orthotics today. The Veteran said he knew he would not be doing a lot of walking that day. He tried to walk 2 miles a day. He described no history of treatment with foot surgery. He reported episodes of left foot pain localized to the area of the left heel on rising in the morning, with prolonged walking, repetitive stair climbing, running, or jumping. He did not report flare-ups or any functional loss. Objectively, there was pain on use of the feet. He did not have pain on manipulation of the feet, swelling on use or characteristic callouses. He does not have extreme tenderness of plantar surfaces, decreased longitudinal arch height, marked deformity and marked pronation. The weight-bearing line does not fall over or medial to the great toe. There was no inward bowing or marked inward displacement or severe spasm of the Achilles tendon on manipulation of the foot. The examiner found that there was no functional loss for the left lower extremity attributable to the left heel condition. Pain, weakness, fatigability or incoordination does not significantly limit functional ability during flare-ups or when the foot is used repeatedly over a period of time. An x-ray examination reflects findings of degenerative changes in the first MTP joint of the left foot and a plantar calcaneal spur. There was no evidence of acute fracture or dislocation noted. The examiner indicated that there is no evidence to suggest that these x-ray findings are related to the healed left heel fracture that was incurred in service. The examiner stated that based on examination and subjective complaints, there is no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare-up. He has no residuals of motor weakness in the foot, residuals of foot deformity, or residuals of malunion/nonunion of skeletal structures. He has a left foot disability of mild severity. In a June 2020 addendum opinion, the examiner stated that the Veteran has a healed, non-displaced left heel fracture that occurred in service in 1991 with no evidence of any residuals thereof. The examiner summarized the in-service treatment. There is functional capacity certificate documentation in 2003 of the Veteran being able to walk 12 miles in combat boots, walk 12 miles with field gear, walk 6 miles with field gear and 40 pound rucksack, lift and carry 40 pounds, remain on feet continuously for 4 hours, and running or jogging 2 miles. There is no documentation of left heel pain until 2018. This heel pain is new and unrelated to the left foot injury from 1991. The etiology of this heel pain is undetermined. There is no evidence to suggest that this Veteran has any left foot residuals of mild, moderate, or of a moderate-severe nature related to his left foot injury during the service. There is no evidence to suggest that the Veteran's current subjective complaints of heel pain are at least as likely as not related to his in-service foot injury. There is no evidence to suggest any service-connected flatfoot, weak foot, clawfoot (pes cavus), metatarsalgia (Morton's disease), hallux valgus, hallux rigidus, hammertoes, or malunion/nonunion of the tarsal or metatarsal bones. There is no service treatment record documentation or subsequent medical clinic documentation of the Veteran having a diagnosis of pes planus. The examiner stated that the pes planus section of the foot condition examination performed in April 2019 was completed only for the express purpose of documenting the presence/absence of foot pain related to a healed fracture and the presence/absence any related foot deformities related to the service-connected healed fracture of the left foot. There was no clinical evidence of pes planus, or any other foot deformities noted during the physical examination. There is no evidence of pain on passive/active range of motion testing of the joints in the feet. He can perform repetitive use testing with at least 3 repetitions with no loss of range of motion in the joints of the back. There is no evidence of pain when the joints in the back are used in non-weight bearing. Based on listening to the information given by the Veteran, to include his current subjective complaints, and based on review of the available records, there was no basis to offer additional losses of function or motion when it comes to repetitive use or during a flareup. In the November 2020 Remand, the Board found that a new VA examination was warranted. In this regard, the examiner failed to provide any rationale as to why the Veteran's plantar calcaneal spur and degenerative changes in the first MTP joint were unrelated to his service-connected left heel fracture and/or a continuation of this service-connected disability. Furthermore, the Veteran indicated that he has had continued left heel pain since the time of his injury. However, the examiner disregarded his statements and based his opinion solely on the lack of documented heel complaints until 2018. A December 2020 C&P examination reflects a diagnosis of chip fracture left calcaneus. The Veteran reported that since his in-service fracture he always had his foot wrapped, which allowed him to continue functioning in service and after, though he always has pain in the left foot. Since his last C&P exam in 2019, he has been having continued pain in his left foot. On a day-to-day basis he has "discomfort." He wore a wrap on his left foot. It hurt to weight bear on the medial side of his left heel. He described "mild" discomfort that lets him know when it is present. He had worse discomfort in the cold weather. He denied any flare-ups or functional loss/impairment. He has pain on use of the feet and pain accentuated on use. The examiner stated that he has "very, very mild tenderness to medial aspect of the posterior heel." There was no functional loss for the left lower extremity attributable to the claimed condition. There was no pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time. He does not have any other functional loss during flare-ups or when the foot is used repeatedly over a period of time. The examiner noted review of the claims folder, to include the prior C&P examinations. The examiner opined that it is less likely than not that the Veteran's plantar calcaneal spur and/or degenerative changes in the first MTP joint are related to his service-connected left heel fracture. Calcaneal spurs are calcium deposits that develop on the calcaneus over a long period of months, usually caused by foot strain, plantar fasciitis and repetitive trauma. Risk factors include gait abnormalities that place stress on heel and adjacent ligaments, running on hard surfaces, poorly fitted shoes and obesity. Calcaneal spurs may or may not be symptomatic. They are not caused by a remote, healed calcaneal chip fracture. Likewise, osteoarthritis of the first MTP joint is not caused by healed calcaneus fracture. It is the most common degenerative disorder of the foot thought to occur from wear and tear and associated with family history and/or trauma to the joint. The Veteran described his symptoms as an "ache" with weight bearing and states symptoms cause no functional impairment. His symptoms were mild with wearing his foot wrap. In July 2021, the Board found that an addendum medical opinion was warranted due to the Veteran's report of pain increased in cold weather. In this regard, as set forth in the November 2020 Board Remand, flare-ups have been reported throughout the rating period on appeal and the examiner was asked to provide an opinion on whether the flare-ups are associated with additional functional loss, i.e., moderate, moderately severe, or severe foot injury during a flare-up. However, the December 2020 examiner only indicated that the Veteran did not report flare-ups during the time of the examination and did not provide the requested opinion. Accordingly, the Board found that an addendum opinion was warranted to determine the severity of his left heel fracture, including during a flare-up. An October 2021 C&P examination report reflects that the examiner reviewed the claims folder and determined that an examination was unnecessary. Based on review of the December 2020 examination, the heel fracture residuals would be characterized as mild. He described his pain on a daily basis as a "mild discomfort" that lets him know when it is present. He reported worse pain in cold weather. He reported wrapping his foot helps. The examiner noted that he has reported that he had worsening pain when out in cold weather though the term "flare up" was not used. He did report limitations in prolonged walking/standing due to his heel pain. Of note, he retired from the military in 2007 and worked in a labor intensive job at a beverage distribution center from 1998 until retirement in 2011, and per the previous examiner's note, his foot issue did not affect his ability to do his job, and he lost no work due to his healed heel fracture. His "flareups" (exposure to cold weather or prolonged activity) are not reported to be associated with significant functional loss. During "flareups" his heel pain may be described as mild, based on his narrative, as documented in the December 2020 and April 2019 C&P examinations. In 2020, he reported ongoing pain; not worsening pain since the 2019 examination. He reported pain with walking more than 2 miles and with repetitive stair climbing, and intensity of pain was 3/10 at its worst. He historically has been able to function in an active work environment, and states that with wrapping foot he can function with mild pain. His limitations in employment due to heel pain (rather than function) include limitations in climbing stairs, and limitations in walking more than 2 miles at a time. Additionally, limitations due to pain might include working outdoors in cold/snowy weather. Affording the Veteran the benefit-of-the-doubt, the Board finds that a 10 percent rating is warranted for the entire period contemplated by this appeal. The 10 percent rating in effect contemplates his symptomatology associated with his residuals of left heel fracture, to include mild pain and functional limitations in climbing stairs and prolonged standing and walking. While he has complained of pain, he does not otherwise have any objective findings or subjective complaints of fatigability, lack of endurance or incoordination. In this regard, the record reflects that the Veteran has functional limitations with standing and walking, and the 10 percent rating in effect contemplates associated symptomatology. The Board finds that 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not provide a basis for an increased rating for any period contemplated by this appeal. See DeLuca v. Brown, 8 Vet. App. 202 (1995). A disability rating in excess of 10 percent is not warranted as a moderately severe disability has not been shown. As detailed, his left heel disability has consistently been characterized as mild with functional limitations. The Board also considered whether the Veteran's disability would warrant a higher disability rating under other diagnostic codes pertaining to the foot but finds that the criteria pertaining to flatfoot, bilateral weak foot, claw feet (pes cavus), metatarsalgia, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones under Diagnostic Codes 5276, 5277, 5278, 5279, 5281, 5282, 5283, respectively are not applicable. Pes cavus, metatarsalgia, hallux rigidus, bilateral weak foot, and hammer toe have not been diagnosed. As detailed above, plantar calcaneal spur and degenerative changes in the first MTP joint are not related to his left heel fracture. Entitlement to a TDIU A TDIU may be assigned where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or 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. §§ 3.340, 3.341, 4.16(a). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. §§ 3.341, 4.19. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Initially, the Board notes that a 100 percent rating has been assigned to PTSD, effective March 15, 2018, and service connection is also in effect for diabetes mellitus, type II (40% 01/13/2017); right shoulder tendonitis (20% 09/11/2012); tinnitus (10% 09/11/2012); traumatic brain injury (10% 09/11/2012); residual painful scars (10% 01/13/2017); left upper diabetic peripheral neuropathy (10% 03/15/2018); right upper diabetic peripheral neuropathy (10% 03/15/2018); left lower diabetic peripheral neuropathy (10% 03/15/2018); right lower diabetic peripheral neuropathy (10% 03/15/2018); scars (six fragment wounds) (0% 11/24/1969); scar, left middle finger (0% 11/24/1969); fracture, left heel (0% 09/11/2012); hearing loss (0% 09/11/2012); shell fragment wound neck (0% 03/15/2018) and generalized headaches status post head injury (0% 03/15/2018). As detailed, the Veteran's claim for a TDIU has been remanded as inextricably intertwined with the left heel increased rating claim. The Veteran's claim for a TDIU is rendered moot from March 15, 2018, as the 100 percent rating in effect constitutes a higher benefit than a TDIU. Also, from such period the Veteran is in receipt of SMC per 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) due to his PTSD rating and additional disabilities ratable at 60 percent or higher. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Thus, he is in receipt of the maximum benefit allowable in contemplation of his service-connected disabilities. With regard to the period prior to March 15, 2018, his PTSD is rated 30% from January 13, 2017 and his other disabilities are rated as indicated above. His combined rating is 40 percent from September 11, 2012, and 80 percent from January 13, 2017. In a March 2018 submission from the Veteran regarding his left heel and right shoulder, he asked whether he was eligible to apply for unemployment benefits. In September 2018 VA correspondence to the Veteran, he was informed that if he wanted to file a claim for individual unemployability he should submit a VA Form 21-526EZ, Application For Disability Compensation And Related Compensation Benefits and VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. The Veteran did not respond and did not submit the requisite forms. In March 2019 VA correspondence to the Veteran, he was informed that he may be entitled to compensation at the 100 percent rate if he is unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. If he believed he qualified, he was requested to return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, completed by each of the employers identified on VA Form 21-8940. The Veteran did not respond and did not submit the requisite forms. As detailed above, the issue of entitlement to a TDIU has been remanded multiple times as inextricably intertwined with the left heel issue; however, to date the Veteran has not offered any evidence in support of a TDIU claim nor has he submitted any VA forms to support a claim. The evidence of record reflects that he retired from the military in 2007 and worked in a labor intensive job at a beverage distribution center from 1998 until retirement in 2011, and his left heel did not affect his ability to do his job, and he lost no work due to his heel fracture. As detailed, for the period from September 11, 2012 to January 12, 2017, he does not meet the schedular criteria for individual unemployability, although from January 13, 2017 to March 14, 2018 he does meet the schedular criteria. Although the Veteran may no longer be able to work as a result of his service-connected disabilities, this benefit cannot be granted based on the current evidence of record. Despite VA's request for the Veteran to complete and submit a VA Form 21-8940, and explanation that a completed form is necessary to the development and substantiation of his claim for a TDIU, the Veteran has still not done so. Although he is represented, his failure to complete and submit this form is without explanation. As the Veteran has not responded as requested, VA's efforts in adequately developing his TDIU claim and obtaining necessary information to make a proper determination as to whether he is unemployable for purposes of a TDIU have been frustrated. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist a claimant is not always a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence). Also, while not binding, the Board notes that the VA Adjudication Procedure Manual, M21-1 (M21-1) instructs the AOJ to deny TDIU if the Veteran has failed to cooperate with development, such as failing to return a completed VA Form 21-8940, when requested. See M21-1, IV.ii.2.F.4.k. Because the Veteran has not provided any information to support his claim, and because the Board is unable to determine, based on the evidence of record, that he is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities, a TDIU must be denied for the period prior to March 15, 2018. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.