Citation Nr: 18140558 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-12 066 DATE: October 3, 2018 ORDER Entitlement to service connection for right foot Morton’s neuroma and metatarsalgia is granted. Entitlement to service connection for right foot corns is denied. Entitlement to service connection for right heel tenderness is denied. For the period prior to April 7, 2016, entitlement to an initial disability rating for spondylosis of the lumbar spine in excess of 10 percent is denied. For the period from April 7, 2016, entitlement to an increased disability rating for spondylosis of the lumbar spine of 40 percent, but no higher, is granted. REMANDED Entitlement to an initial compensable disability rating for osteoarthritis of the right great toe is remanded. Entitlement to service connection for a left foot disability, to include hallux rigidus, hallux valgus, hammertoes with lateral deviation, left heel tenderness, Morton’s neuroma and metatarsalgia, bunions, corns, and osteoarthritis, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his right foot Morton’s neuroma and metatarsalgia are proximately due to his service-connected osteoarthritis of the right great toe. 2. The Veteran’s right foot corns are neither proximately due to nor aggravated beyond their natural progression by his service-connected osteoarthritis of the right great toe, and are not otherwise related to an in-service injury, event, or disease. 3. The Veteran’s right heel tenderness is neither proximately due to nor aggravated beyond its natural progression by his service-connected osteoarthritis of the right great toe, and is not otherwise related to an in-service injury, event, or disease. 4. For the period prior to April 7, 2016, the Veteran’s spondylosis of the lumbar spine was manifested by flexion of 80 degrees, combined range of motion of 180 degrees, and guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour. 5. For the period from April 7, 2016, the Veteran’s spondylosis of the lumbar spine was manifested by forward flexion of 25 degrees. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for right foot Morton’s neuroma and metatarsalgia are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for service connection for right foot corns are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for service connection for right heel tenderness are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 4. For the period prior to April 7, 2016, the criteria for an initial disability rating for spondylosis of the lumbar spine in excess of 10 percent are not met. 38 U.S.C. §§ 1155, 5103, 5107(b); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 5. For the period from April 7, 2016, the criteria for an increased disability rating for spondylosis of the lumbar spine of 40 percent, but no higher, are met. 38 U.S.C. §§ 1155, 5103, 5107(b); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Generally, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 1 Vet. App. 439 (1995). To establish secondary service connection, there must be (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). With respect to claimed right foot Morton’s neuroma and metatarsalgia, service connection is warranted. The first element of service connection is met as the Veteran was diagnosed with Morton’s neuroma and metatarsalgia in July 2015. The second element is met as the Veteran is service-connected for osteoarthrosis of the right great toe. The third element of service connection is met after resolving doubt in the Veteran’s favor. A March 2014 examiner opined that Morton’s metatarsalgia is at least as likely as not proximately due to or the result of osteoarthritis of the right great toe. The examiner noted that the Veteran’s chronic right foot pain caused him to have an abnormal gait, which also adversely affected his stance, weight distribution and body mechanics. The examiner concluded that such compensatory changes more likely than not contributed to the persistent pain he has developed between his left fourth and fifth metatarsal head area and indicated that this is most 'compatible with a Morton neuroma, also known as Morton’s metatarsalgia. In contrast, a January 2016 examination found that Morton’s neuroma and metatarsalgia was not supported as the Veteran reported that only his right great toe was symptomatic on separation. In June 2014, the Veteran submitted medical articles stating that abnormal foot mechanics causes Morton’s neuroma. In light of the above, the Board will resolve any remaining doubt in the Veteran’s favor and find that the evidence is at lease in equipoise as to whether a medical nexus has been established, with consideration of the March 2014 examination and medical articles submitted by the Veteran. Consequently, service connection is warranted and the claim for right foot Morton’s neuroma and metatarsalgia is granted. With respect to claimed right foot corns and right foot tenderness, service connection is not warranted. The first element of service connection is met after resolving doubt in the Veteran’s favor. Though treatment records do not support diagnoses, a January 2016 examination suggests diagnoses of right foot corns and right heel pain. The second element of service connection is met as the Veteran is service-connected for right great toe osteoarthritis. However, the third element of service connection is not met as the most probative evidence does not establish a medical nexus. The March 2014 and January 2016 examinations determined that corns and tenderness in heels were less likely as not proximately due to or the result of the right great toe. Though March 2014 and October 2015 opinions from a treating nurse practitioner indicate that the Veteran’s chronic problems and foot pain were caused by and/or aggravated his right great toe, the Board notes that these opinions hold significantly less probative weight as they do not identify a diagnosis. Accordingly, the most probative evidence does not support a medical nexus. As such, service connection is not warranted, and the claims for right foot corns and right foot tenderness is denied. Increased Rating The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Spondylosis of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, and is therefore evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the pertinent provisions of the General Rating Formula, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, thoracolumbar spine disabilities are evaluated as follows. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, General Rating Formula, Note 2. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Having reviewed the record, the Board finds that an increased disability rating of 40 percent, but no higher, is warranted from April 7, 2016. Prior to April 7, 2016, a disability rating in excess of 10 percent is not warranted. The Veteran exhibited symptoms that fit squarely into the criteria for a 10 percent rating: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degree; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; and muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A March 2010 private medical record notes decreased flexion, but does not specify the degree of flexion exhibited. Tenderness, pain, spasm, and normal gait were documented. A May 2013 examination noted forward flexion of 80 degrees with pain, extension of 20 degrees with pain, left and right lateral flexion of 20 degrees with pain, and left and right lateral rotation of 20 degrees with pain. The Veteran did not exhibit guarding or muscle spasm. The Board notes that a June 2013 VA treatment record includes a notation of “ROM: 15.” The Veteran has asserted that this should be interpreted as a range of motion finding of forward flexion at 15 degrees. However, the Board disagrees. The June 2013 record does not specify whether the range of motion was forward flexion, extension, or rotation. Additionally, notations within the June 2013 record do not support the Veteran’s argument. Here, the record notes that lumbar forward flexion was decreased by 75 percent and extension was decreased by 50 percent. Given that normal extension is 30 degrees, and because the physical therapist specifically notes that extension was decreased by 50 percent, it appears that the indication of “ROM: 15” is more likely a range of motion finding for extension. See also General Rating Formula for Diseases and Injuries of the Spine, Note 2. Regardless, the Board finds that the unclear nature of the record renders it less probative that the March 2010 private record and the May 2013 VA examination. Accordingly, the most probative evidence indicates that the Veteran’s spondylosis of the lumbar spine, for the period prior to April 7, 2016, was manifested by flexion of 80 degrees, combined range of motion of 180 degrees, and guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A rating in excess of 10 percent is not warranted as the most probative evidence did not establish forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. From April 7, 2016, an increased disability rating of 40 percent is warranted. The evidence demonstrates that the Veteran exhibited forward flexion of the thoracolumbar spine 30 degrees or less. An April 7, 2016 physical therapy record documented flexion of 25 degrees, extension of 5 degrees, and rotation of 35 degrees. A May 2017 VA treatment record noted forward bending of approximately 30 degrees with pain, minimal extension due to guarding, and minimal lateral bending/rotation with pain. A July 2017 VA examination noted forward flexion of 30 degrees, extension of 10 degrees, left and right lateral flexion of 15 degrees, left and right lateral rotation of 20 degrees. There was evidence of muscle spasm with tenderness to palpation along the lumbar paraspinous muscles; however, guarding and muscle spasms did not result in abnormal gait or abnormal spinal contour. A high rating of 50 percent is not warranted as there was no evidence of unfavorable ankylosis of the thoracolumbar spine. Accordingly, the most probative evidence indicates that the Veteran’s spondylosis of the lumbar spine, for the period prior to April 7, 2016, was manifested by forward flexion of 25 degrees. The Board notes the Veteran’s arguments that he entitled to a 40 percent rating back to the initial date of claim as the severity of his condition has been constant and based upon his prior subjective reports. Though the Veteran is competent to describe symptoms that he has observed and experienced, he has not been shown to possess the medical expertise to provide opinions of range of motion findings. Additionally, the Board notes that medical records indicate that the Veteran’s symptoms may not have been constant. In December 2015, the Veteran requested care from his physician and reported that he was experiencing more back pain and losing more flexibility and range of motion than before. In light of this, the Board finds the medical evidence of record, and the lay statements made contemporaneously with those records, are more credible and hold more probative weight. Consequently, the most probative evidence does not support an increased rating of 40 percent back to the date of claim. In sum, an increased disability rating in excess of 10 percent is not warranted for the period prior to April 7, 2016. An increased disability rating of 40 percent, but no higher, is warranted from April 7, 2016. REASONS FOR REMAND Having reviewed the record, the Board finds that remand is warranted for the issues of increased disability rating for osteoarthritis of the right great toe and service connection for a left foot disability. With respect to the issue of osteoarthritis of the right great toe, remand is warranted for a new examination. A May 2017 VA treatment record notes that the Veteran was possibly referred for surgical intervention, and that his painful feet had worsened in the last few months. As this indicates a potential worsening, remand is warranted for a new examination to determine the current severity of the Veteran’s osteoarthritis of the right great toe. To the extent possible, the examiner should attempt to distinguish the symptoms due to the Veteran’s service-connected right foot disabilities from symptoms due to any non-service-connected disabilities. With respect to the issue of a left foot disability, the record contains multiple nexus opinions. Of note, the May 2014 and January 2016 examiners opined that a left foot disability was less likely than not related to service because medical literature does not support the Veteran’s contentions and gait changes do not cause the problems the Veteran was recently diagnosed with. However, the Board notes that in June 2014, the Veteran submitted medical articles stating that abnormal foot mechanics and previous trauma to the foot causes Morton’s neuroma. The Board notes that though March 2014 and October 2015 opinions provided a positive nexus, the clinician did not identify any specific diagnoses. In light of this, the Board finds that remand is warranted for a new examination. On remand, the examiner should determine the nature and etiology of the Veteran’s claimed left foot disabilities. The examiner should consider the medical articles submitted by the Veteran. Finally, any outstanding VA treatment records should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from June 2017. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected osteoarthritis of the right great toe. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should attempt to distinguish the symptoms of the Veteran’s service-connected right foot disabilities from symptoms due to any non-service-connected disabilities. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed left foot disability. The examiner must provide the following opinions: a) Whether it is at least as likely as not related to an in-service injury, event, or disease. b) Whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected right great toe and any associated gait changes. The examiner should consider the medical articles submitted in June 2014, stating that abnormal foot mechanics and previous trauma to the foot causes Morton’s neuroma. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Vang, Associate Counsel