Citation Nr: 22040909 Decision Date: 07/18/22 Archive Date: 07/18/22 DOCKET NO. 18-01 603 DATE: July 18, 2022 REMANDED Entitlement to an initial increased rating in excess of 10 percent for service-connected right metatarsalgia with status post fracture of the third metatarsal is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU). REASONS FOR REMAND The Veteran served on active duty from September 1979 to July 1983. This matter originally came before the Board of Veterans' Appeals (Board) from a September 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A December 2020 Board decision denied the Veteran's claim. That decision was appealed to the United States Court of Appeals for Veterans Claims (CAVC), where a Joint Motion for Partial Remand (JMPR) was granted in July 2021. This matter was remanded by the Board in November 2021 for further development. This matter is again before the Board. The Board has included the claim for a TDIU on the cover page of this decision because it finds it is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to an initial increased rating in excess of 10 percent for service-connected right metatarsalgia with status post fracture of the third metatarsal is remanded. The Veteran believes that a higher initial increased rating for the above disability is warranted. Examinations for the above disability took place in September 2017, March 2022, and April 2022. See September 2017 C&P Exam; March 2022 C&P Exam; April 2022 C&P Exam. The Board finds that none of the examinations considered the ameliorative effects of medication when evaluating the severity of the disability. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (when a Diagnostic Code is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication). Specifically, the Veteran had foot injections and had pain medication which provided some relief. See July 2022 CAPRI; May 2022 CAPRI; May 2022 Statement in Support of Claim. Additionally, the examinations did not consider/were unable to consider all of the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Such evidence included foot tingling and possible numbness. See May 2022 CAPRI. Additionally, the 2022 examinations did not consider/were unable to consider the Veteran's report of having to walk on the outside of the foot until it started hurting and then having to walk on the inside of the foot, among other lay reports. See May 2021 Correspondence. Additionally, the March 2022 examination stated that Morton's neuroma and plantar fasciitis may have been due to the right metatarsalgia with status post fracture of the third metatarsal because the Veteran had to compensate while walking. See March 2022 C&P Exam. The Board finds that this opinion did not express the right degree of certainty for providing a medical nexus. See Bloom v. West, 12 Vet. App. 185 (1999). The April 2022 examination found that those conditions were not related to the right metatarsalgia with status post fracture of the third metatarsal. See April 2022 C&P Exam. However, the Board finds that this opinion did not consider/was unable to consider all of the relevant evidence of record, such as medical research provided by the Veteran and the Veteran's lay statements. See Nieves-Rodriguez, 22 Vet. App. at 295; May 2021 Correspondence; May 2019 Correspondence. For these reasons, a remand is needed for a new VA examination. Finally, since the issuance of the May 2022 supplemental statement of the case (SSOC) by the RO, new evidence pertinent to the claim has been added to the record without a waiver of Agency of Original Jurisdiction (AOJ) consideration. A remand will also allow for the AOJ to consider the additional evidence in the first instance. See 38 C.F.R. §§ 19.31, 19.37(a). The matter is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any relevant outstanding private and/or VA treatment records. After obtaining any necessary authorizations from the Veteran, make all reasonable attempts to obtain the outstanding records in accordance with 38 C.F.R. § 3.159. 2. Update VA and private treatment records. VA treatment records appear current up to June 2022. 3. Provide the Veteran with a VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of his TDIU claim. If the Veteran provides a completed VA Form 21-8940, the AOJ should complete any additional development prompted by the information on the completed form. 4. Schedule one or more appropriate VA examinations to determine the nature, severity, frequency, and manifestations of the service-connected right metatarsalgia with status post fracture of the third metatarsal throughout the entire appeal period (i.e., since June 2017). 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 right metatarsalgia with status post fracture of the third metatarsal. This should also include the impact that the service-connected right metatarsalgia with status post fracture of the third metatarsal may have/may have had on the rest of the right foot. The claims file, including a copy of this Remand, should be made available to and should 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 service-connected right metatarsalgia with status post fracture of the third metatarsal throughout the entire appeal period, (i.e., since June 2017). This should include, but is not limited to, any muscle injuries and any neurological impairments of the service-connected right metatarsalgia with status post fracture of the third metatarsal. 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 right metatarsalgia with status post fracture of the third metatarsal. This should also include the impact that the service-connected right metatarsalgia with status post fracture of the third metatarsal may have/may have had on the rest of the right foot. The Board notes that the nature, severity, signs, and symptoms of the right metatarsalgia with status post fracture of the third metatarsal may vary at different points during the time periods being reviewed by the examiner. Such variations should be reflected in the examination report, if applicable. The examiner must comment on the functional limitations caused by repeated use over time and flare-ups due to the service-connected right metatarsalgia with status post fracture of the third metatarsal. The examiner should specifically describe the frequency, duration, characteristics, severity and/or functional loss related to repeated use over time and flare-ups. The examiner should also describe the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such repeated use over time and flare-ups affect functional impairment. After a review of the claims file and any examination of the Veteran, the examiner is asked to provide an opinion with respect to the following: (A) Identify all disabilities related to the service-connected right metatarsalgia with status post fracture of the third metatarsal since June 2017, even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) The Veteran is also claiming that the service-connected right metatarsalgia with status post fracture of the third metatarsal is impacting the rest of the right foot. Identify all disabilities related to this complaint since June 2017, even if they are currently asymptomatic or have resolved during the pendency of the appeal. (C) For each identified disability, is it approximately at least as likely as not that the disability is related to or aggravated by the service-connected right metatarsalgia with status post fracture of the third metatarsal (including any medications taken for the service-connected disability)? 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) Is it approximately at least as likely as not that at any point since June 2017, the right metatarsalgia with status post fracture of the third metatarsal has been (or would have been without the ameliorative effects of medication for the disability) "moderately severe"? This includes after repeated use over time and during flare-ups. If so, for which periods? If not, the examiner should specifically explain why the service-connected right metatarsalgia with status post fracture of the third metatarsal has not reached the level of being "moderately severe" during that period. (E) Is it approximately at least as likely as not that at any point since June 2017, the right metatarsalgia with status post fracture of the third metatarsal has been (or would have been without the ameliorative effects of medication for the disability) "severe"? This includes after repeated use over time and during flare-ups. If so, for which periods? If not, the examiner should specifically explain why the service-connected right metatarsalgia with status post fracture of the third metatarsal has not reached the level of being "severe". In addition to the other relevant evidence of record, the examiner is asked to consider and address as appropriate the following information with a caution that this list is not a substitute for a review of the record: (1) Various lay statements. See May 2022 Third Party Correspondence; May 2022 Statement in Support of Claim; July 2021 Appellate Brief; June 2021 Statement in Support of Claim; May 2021 Correspondence; June 2020 Third Party Correspondence; May 2019 Form 9; November 2017 Statement in Support of Claim; November 2017 NOD; June 2017 Statement in Support of Claim. (2) Medical records from 2017 showing plantar calcaneal spurs of the feet. Medical records from 2021 showed a right foot injection and neuroma of the first webspace on the right foot. The Veteran was on opioid therapy. Pain medication helped. There was an assessment of likely severe plantar fasciitis. There was dull, achy, burning, and radiating pain down to the foot. The Veteran reported progressive painful sensation of the feet. There was point tenderness at the metatarsals. There was possibly a spasm and burning in the feet. The Veteran reported persistent heel pain. There was pain on the bottom of the feet, which caused the feet to be very sore. Medical records from 2022 showed feet pain rated at 8-9/10. When the third metatarsal was broken, it completely flattened the arch. The Veteran reported severe feet pain and tingling, even in a resting state. Injections temporarily stopped the pain. The pain made working difficult. The Veteran had bone spurs and it was painful to walk. See May 2022 CAPRI. (3) VA examinations. See April 2022 C&P Exam; March 2022 C&P Exam; September 2017 C&P Exam. (4) Medical research. See May 2019 Correspondence. (5) 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. (Continued on the next page) 5. Review all relevant evidence of record that has been associated with the claims file since the May 2022 SSOC and readjudicate the issue 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.