Citation Nr: 18152671 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 17-67 108 DATE: November 23, 2018 REMANDED Entitlement to service connection for a left foot condition, claimed as hallux valgus, is remanded. Entitlement to service connection for a right foot condition, claimed as hallux valgus, is remanded. Entitlement to service connection for headaches is remanded. Entitlement to an initial rating in excess of 10 percent for lumbar degenerative joint and disc disease is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to October 1990. 1. Service connection for a left foot condition and a right foot condition is remanded. The Veteran contends that his bilateral foot condition is related to his active duty service. Service treatment records (STRs) revealed that the Veteran was diagnosed with bunions of his bilateral feet. The Veteran complained of foot pain due to his bilateral bunions in October 1981, December 1983, January 1986, October 1986, and in April 1987. In multiple lay statements, the Veteran stated that his current foot pain is related to his active duty service. The Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Moreover, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Thus, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Board cannot make a fully-informed decision on the issue of service connection for a left foot condition and a right foot condition because no VA examiner has opined whether the conditions are attributable to the Veteran’s active duty service. 2. Service connection headaches is remanded. The Veteran contends that his headaches are related to his active duty service. STRs show that the Veteran was diagnosed with a sinus headache that progressively worsened over 2 weeks in August 1968. Also, he had a dull headache in February 1979. During a November 2016 VA examination, the Veteran was diagnosed with tension headaches. The examiner opined that the Veteran’s headaches were less likely than not related to his active duty service as the examiner was unable to find in-service complaints of headaches as many STRs were illegible. As in-service complaints of headaches were found, an addendum opinion is needed. 3. Entitlement to an initial higher rating for lumbar degenerative joint and disc disease is remanded. In multiple statements, the Veteran asserted that his lumbar degenerative joint and disc disease increased in severity since the Veteran was last examined by VA in November 2016. In October 2018, a private treatment record noted that the Veteran’s lumbar condition has worsened since his last examination. The Veteran endorsed increased back pain with walking and moving. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, the United States Court of Appeals for Veterans Claims (Court) in Mitchell v. Shinseki explained that functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. 25 Vet. App. 32 (2011). Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Id. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his lumbar condition. 4. Entitlement to an initial higher rating for bilateral hearing loss is remanded. The Veteran asserted that his bilateral hearing loss has increased in severity since the Veteran was last examined by VA in November 2016. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his bilateral hearing loss. 5. Entitlement to initial higher ratings for left lower extremity radiculopathy and right lower extremity radiculopathy is remanded. In a May 2017 statement, as well as a December 2017 statement, the Veteran asserted that his bilateral lower extremity radiculopathy increased in severity since the Veteran was last examined by VA in November 2016. He noted that he had severe numbness that radiated down both extremities. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his bilateral lower extremity radiculopathy. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of the Veteran’s bilateral foot pain. The record must be made available to the examiner and the examiner should indicate in his/her report whether the record was reviewed. Any indicated tests should be accomplished. Based on a review of the record and any examination findings, the examiner should provide an opinion as to whether it is at least as likely as not that a current bilateral foot disability (or foot pain resulting in documented functional impairment (in the absence of an underlying foot pathology/diagnosis)) is etiologically related to an in-service injury, event, or disease, including the Veteran’s in-service diagnoses bunions of his bilateral feet. The examiner should address the Veteran’s contention that he has had continuous foot pain since his in-service diagnosis of bilateral foot bunions, as well as provide a complete rationale for all opinions expressed and conclusions reached. 2. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s headaches. The examiner must opine whether it is at least as likely as not related to the Veteran’s in-service complaints of headaches in August 1968 and February 1979. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. Schedule the Veteran for a VA examination to determine the current severity of the Veteran’s lumbar spine disability (lumbar degenerative joint and disc disease), left lower extremity radiculopathy, and right lower extremity radiculopathy. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran himself. The examiner should elicit relevant information as to the Veteran’s flares with a description of the additional functional loss, if any, the Veteran has during flares. The examiner should estimate the Veteran’s functional loss due to flares based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so. (a.) Taking into account the evidence in the claims file and the Veteran’s lay statements, the examiner must determine the current severity of the Veteran’s lumbar spine disability and bilateral radiculopathy, and any impairment on activities of daily living and capacity for occupational activities. (b.) The examiner is directed to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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 examiner should also, in accordance with DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011) indicate whether the Veteran’s lumbar spine disability is productive of any functional loss in the form of weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any additional limitation of motion or additional functional loss. In doing so the examiner must address any increased functional loss during flare-ups. Additionally, if feasible, the examiner should describe any functional loss during flare-ups and otherwise in terms of additional loss of range of motion. If such range-of-motion testing is not included, the examiner should provide a clear explanation as to why. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion regarding symptoms without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral hearing loss alone and discuss the effect of the Veteran’s hearing loss on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel