Citation Nr: 22018237 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 13-06 111 DATE: March 28, 2022 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is dismissed. REMANDED From December 15, 2009, entitlement to a 30 percent rating for myofascial tenderness of left foot, status post fracture of the fourth and fifth metatarsals, is remanded. FINDINGS OF FACT 1. In February 2021, the Agency of Original Jurisdiction (AOJ) granted an effective date of December 15, 2009 for the Veteran's 100 percent rating for insomnia with dysthymic disorder and intermittent explosive disorder and special monthly compensation (SMC) based on housebound status. 2. December 15, 2009 is one day after the Veteran separated from the Air Force, and it is the first possible day he could have received disability compensation. CONCLUSION OF LAW The appeal for entitlement to TDIU is moot, and the claim is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from January 2005 to December 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). On May 7, 2021, the AOJ, in response to evidence in the claims file, mailed the Veteran a letter asking him to confirm that he desired to withdraw this appeal. The Veteran did not respond to this mailing. If the Veteran continues to desire to withdraw this appeal, the Board requests that he respond in writing to the AOJ's letter. This will allow VA to conserve resources and effectuate his desire. Issue 1: Entitlement to a TDIU In Bradley v. Peake, the United States Court of Appeals for Veterans Claims held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). 22 Vet. App. 280 (2008). In February 2021, the AOJ assigned an effective date of December 15, 2009 for three benefits a) the Veteran's 100 percent rating for insomnia with dysthymic disorder and intermittent explosive disorder; b) SMC; and c) Dependents' Educational Assistance. The effective date is one day after the Veteran separated from the Air Force, and it is the first possible day he could have received disability compensation. Because the Board could award no additional benefit if it granted a TDIU, the issue of entitlement to a TDIU is moot. REASONS FOR REMAND Issue 2: From December 15, 2009, entitlement to a rating greater than 10 percent for myofascial tenderness of left foot, status post fracture of the fourth and fifth metatarsals The AOJ service connected the Veteran's myofascial tenderness of left foot, status post fracture of the fourth and fifth metatarsals in October 2010. It rated it as 10 percent disabling under Diagnostic Code 5284, effective December 15, 2009. The Veteran appealed the rating in September 2011. During the pendency of the appeal, VA has examined the Veteran four times for this issue March 2010, September 2010, May 2016, and March 2019. Of these, the March 2019 examination has introduced a question which the Board must resolve before it can adjudicate this issue. In Section 1c of the March 2019 examination report, the examiner noted: THE VETERAN HAS PAIN WITH PALPATION OF THE FEET AS BELOW, IN CERTAIN WEB SPACES OF BOTH FEET AND ON THE PLANTAR ASPECTS OF BOTH FEET. BASED UPON THIS FINDING ALONE, CONSIDERATIONS FOR DIAGNOSES OF MORTON'S NEUROMA AND PLANTAR FASCIITIS COULD BE ENTERTAINED. HOWEVER, THE VETERAN, AS PER VA EXAM PERIPHERAL NERVE DBQ OF 5/18/16, HAS A DIAGNOSIS OF "peripheral polyneuropathy of uncertain etiology; mild, sensory only, involving all 4 extremities," WHICH INTERFERES WITH THIS EXAMINER'S ABILITY TO DEFINITIVELY IDENTIFY THESE FOOT CONDITION DIAGNOSES, SINCE THE PERIPHERAL POLYNEUROPATHY IS LIKELY TO BE A REASON FOR THIS PAIN AS WELL. IN FACT, THE VA FOOT CONDITIONS DBQ FROM 5/18/16 SPECIFICALLY STATES, "history of left 5th metatarsal fracture 2006 when someone stepped on the foot with cleats; there is no focal tenderness in this region, his pain is not limited to this area when it occurs, and there are no residual abnormalities on x-ray. This fracture condition has resolved. There is no evidence of other focal pathology in/from the feet themselves. His description of bilateral foot pain is consistent with diffuse pain from the peripheral polyneuropathy." THUS, THE DIAGNOSES OF MORTON'S NEUROMA OR PLANTAR FASCIITIS AT THIS TIME WILL NOT BE GIVEN, SINCE THIS EXAMINER WOULD JUST BE RESORTING TO MERE SPECULATION IN THE SETTING OF A POLYNEUROPATHY THAT IS AT LEAST SEVERAL YEARS' OLD. HOWEVER, ALTHOUGH THE 5/18/16 VA DBQ FOOT EXAM STATED THAT THE FRACTURE WAS RESOLVED AND THAT THERE WAS NO FOCAL TENDERNESS IN THIS REGION, THE PRESENT EXAMINER DOES IDENTIFY FOCAL TENDERNESS IN THE REGION OF THE PREVIOUS FRACTURE SITE AND THUS WILL LIST FRACTURE RESIDUALS OF FOOT PAIN AT THIS TIME AS THE SOLE DIAGNOSIS FOR HIS SERVICE-CONNECTED FOOT PAIN CONDITION. In Section 13 of the March 2019 examination report, the examiner noted the Veteran had the following symptoms: Symptom Side Affected Excess fatigability Bilateral Pain on movement Bilateral Pain on weight-bearing Bilateral Instability of station Bilateral Disturbance of locomotion Bilateral Interference with standing Bilateral Lack of endurance Bilateral Swelling Left Given the findings, it is unclear if the symptoms reported in Section 13 are due solely to the Veteran's myofascial tenderness of left foot, status post fracture of the fourth and fifth metatarsals or to the other conditions/diagnoses noted in Section 1c of the examination report. Therefore, the Board will remand for an addendum opinion before rating the disability. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the medical professional who examined the Veteran in March 2019 for his myofascial tenderness of left foot, status post fracture of the fourth and fifth metatarsals. If that person is not available, obtain an addendum opinion from a qualified medical professional. The medical professional should opine: a) Are the symptoms, as recorded above and in Section 13 of the March 2019 VA examination report, solely attributable to the Veteran's myofascial tenderness of left foot, status post fracture of the fourth and fifth metatarsals? b) If the answer to (a) is no, can you identify the symptoms solely attributable to the Veteran's myofascial tenderness of left foot, status post fracture of the fourth and fifth metatarsals? (Continued on the next page) c) If the answer to (b) is yes, identify the symptoms solely attributable to the Veteran's myofascial tenderness of left foot, status post fracture of the fourth and fifth metatarsals. d) If the answer to (b) is no, explain why not. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.