Citation Nr: 18142345 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-19 359A DATE: October 15, 2018 ORDER Entitlement to an initial compensable rating for service-connected hammer toe deformity of the left foot status postop is denied. REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for lumbar spine condition is remanded. Entitlement to an initial compensable rating for service-connected left knee strain with calcific tendonitis is remanded. FINDING OF FACT The Veteran’s left foot does not demonstrate hammer toe of all toes, unilateral without claw foot. CONCLUSION OF LAW The criteria for a compensable initial rating for left foot hammer toes have not been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5282 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to September 1991. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Hammer Toe Deformity of the Left Foot Status Postop Here, the Veteran is in receipt of a non-compensable rating for his service-connected hammer toe deformity of the left foot status postop under Diagnostic Code 5282. Under Diagnostic Code 5282 for hammer toe, the minimum noncompensable rating is warranted for hammer toe of individual toes without claw foot. The maximum 10 percent rating is warranted for hammer toe of all toes, unilateral and without claw foot. 38 C.F.R. § 4.71a, Diagnostic Code 5282 (2017). In a February 2009 VA examination report for feet, the VA examiner noted that the Veteran has a diagnosis of hammer toe. The VA examiner noted that the Veteran underwent surgery and did help his hammer toe condition to some degree. The VA examiner noted the Veteran’s left foot condition did not affect his ability to perform activities of daily living. In a May 2015 VA examination report for foot conditions, with respect to his left foot, the VA examiner noted that hammer toe affected the Veteran’s second and third toes. The Veteran reported pain with weightbearing, standing, or walking for sustained periods of time. Bilateral flat foot (pes planus) was noted. Hallux valgus, hallus rigidus, clawfoot, malunion or nonunion of tarsal or metatarsal bones were not noted. In terms of functional loss and limitation of motion with respect to the Veteran’s left foot, the Veteran noted pain on movement, pain on weight-bearing, swelling, disturbance of locomotion, interference with standing, and lack of endurance. The VA examiner noted there is painful range of motion with walking and standing for sustained periods. In a November 2015 VA examination report for foot conditions, the VA examiner noted that the Veteran’s reported limited mobility due to his hammer toes. The VA examiner noted that hammer toe affects the Veteran’s left second, third, and fourth toes. The VA examiner noted that the Veteran has mild to moderate symptoms due to a hallux valgus condition affecting both his left and right feet. With respect to the Veteran’s left foot, Morton’s neuroma and metatarsalgia, hallux rigidus, clawfoot, malunion or nonunion of tarsal or metatarsal bones were not noted. In a July 2016 VA examination report for foot conditions, the VA examiner noted that the Veteran’s hammer toe affects the Veteran’s left second and third toes. With respect the Veteran’s left foot, Morton’s neuroma and metatarsalgia, hallux valgus, hallux rigidus, clawfoot, malunion or nonunion of tarsal or metatarsal bones were not noted. After review of the evidence, the Board finds that the hammer toe affects single toes, but not all the toes, as reflected by the VA examinations and medical records. Given such, a non-compensable rating under Diagnostic Code 5282 is warranted. The Veteran does not have hammer toe of all the toes on his left foot, consequently, a rating of 10 percent under Diagnostic Code 5282 is simply not warranted. Other Considerations When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see 38 C.F.R. §§ 4.40, 4.45. Thus, in determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the Board notes that a rating under Diagnostic Code 5282 is not based on limitation of motion. Thus, Deluca would not be applicable. The Board has also considered whether a compensable rating is warranted under other diagnostic codes pertaining to the left foot. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Here although the evidence reflects that the Veteran has flatfoot of the bilateral feet, the Veteran is already in receipt of a disability rating for his bilateral flatfoot, and that disability rating is not the subject of this appeal. Additionally, even though in the November 2015 VA examination report the VA examiner noted a diagnosis of hallux valgus affecting the Veteran’s left foot, the Board notes that even under Diagnostic Code 5280 for hallux valgus, the Veteran would not be entitled to a compensable rating. Under this rating, hallux valgus that has been operated on with resection of the metatarsal head or severe hallux valgus equivalent to the amputation of the great toe warrant a 10 percent disability rating. 38 C.F.R. § 4.71a. Here, the evidence does not reflect the Veteran’s hallux valgus has been operated on with resection of the metatarsal head or severe hallux valgus equivalent to the amputation of the great toe. Thus, a rating under Diagnostic Code 5280 is not applicable. Furthermore, as the evidence does not reflect diagnoses of weak foot, claw foot, anterior metatarsalgia, hallux rigidus, malunion of the tarsal or metatarsal bones, or other foot injuries, compensable ratings are not warranted under those diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5277, 5278, 5279, 5281, 5283, 5284 (2017). Lastly, the Board acknowledges that in the May 2015 VA examination report the VA examiner noted a residual surgical scar on the left foot. Thus, the Board has considered whether a separate disability rating is warranted for the scar. To receive a separate compensable disability rating for his scar, the evidence must show a scar that is deep, nonlinear and at least 39 square cm, a scar that is superficial, nonlinear, and at least 929 square cm, or a scar that is unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804. In the May 2015 VA examination report, the VA examiner noted that the Veteran does have a tiny linear scar at the base of the second and firth left toes. However, the VA examiner noted that this scar is not painful or unstable, does not have a total area equal to or greater than 39 square cm, or is not located on the head, face or neck. Therefore, the Board finds that the Veteran’s scar did not manifest to a degree that more nearly approximates the criteria for a separate compensable disability rating. Id. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the current appeal. See 38 U.S.C. § 5107 (b) (West 2012). REASONS FOR REMAND Cervical Spine Condition and Lumbar Spine Condition With respect to the Veteran’s claims for service connection for a cervical spine condition and a lumbar spine condition, further development is warranted. Here, the Veteran has not been afforded a VA examination for either his cervical spine condition or his lumbar spine condition. However, a review of the evidence reveals that the Veteran has been diagnosed with lumbar stenosis, lumbosacral neuritis, cervicalgia, and cervical spine stenosis. Additionally, the Veteran contributes his cervical and lumbar conditions to repeat jumps he conducted while airborne during his military service. In this regard, the Veteran’s military records reveal that he was awarded a Parachutist Badge. Although in a September 2014 non-VA medical opinion, Dr. D.M.W. opined that the Veteran’s lumbar and cervical spine conditions more likely than not the result of his military service, Dr. D.M.W. did not provide a rationale as to the basis of his opinion. Given that a rationale was not provided, this medical opinion holds no probative value. Thus, as there remains a question as to whether the Veteran’s lumbar and cervical spine conditions are caused by the Veteran’s active service, a remand is warranted to afford the Veteran with VA examinations to determine the nature and etiology of his lumbar and cervical spine conditions. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Left Knee Strain With Calcific Tendonitis With respect to the Veteran’s claim for an initial compensable rating for service-connected left knee strain with calcific tendonitis, the Veteran was most recently afforded a VA examination November 2015. However, since that time, the United States Court of Appeals for Veterans Claims (Court) found that, pursuant to 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing situations, in order for an examination to be considered adequate. See Correia v. McDonald, 28 Vet. App. 158 (2016). The examination reports in this case do not contain such findings. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a remand for a new examination is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a qualified examiner to determine the nature and etiology of the Veteran’s (a) cervical spine condition and (b) lumbar spine condition. All tests and studies deemed appropriate by the examiner must be conducted. After performing any required test, if necessary, and reviewing the entire record, the examiner should provide an opinion responding to the following question: (a) Whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran’s cervical spine condition is related to service. (b) Whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran’s lumbar spine condition is related to service. In offering this opinion, the examiner MUST ACKNOWLEDGE AND DISCUSS THE VETERAN’S LAY REPORTS AS TO jumping out of airplanes during service. The examiner is to note that the Veteran received a Parachutist Badge as reflected in the Veteran’s military records. S/HE should outline that history in the report. 2. Schedule, the Veteran for a VA medical examination to clarify the severity of his left knee strain with calcific tendonitis. Access to the Veteran’s electronic claims file should be made available to the examiner for review in connection with the examination. The examination report should include the range of motion of the right and left knees in degrees. The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing, as required by 38 C.F.R. § 4.59. If any such testing cannot be performed on the joint at issue, the examiner should specifically state so and provide an explanation in the report. Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination in relation to the Veteran’s left knee strain with calcific tendonitis. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner should also, to the extent possible, provide a retrospective opinion addressing prior range of motion of the Veteran’s left knee strain with calcific tendonitis, additional loss of motion after repetitions, and function loss due to pain, considering active and passive motion as well as weight-bearing and nonweight-bearing considerations, throughout the claims period. If, the examiner is unable to provide a retrospective opinion, the examiner must provide a thorough rationale explaining why such opinion is not provided in this examination. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examination report should also identify all neurological manifestations of the Veteran’s left knee strain with calcific tendonitis, if any. (continued on next page) Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel