Citation Nr: 18156370 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 97-21 623 DATE: December 11, 2018 REMANDED Entitlement to an increased evaluation for thoracolumbar pain syndrome with degenerative changes of the thoracic spine from May 21, 2012, currently rated as 20 percent disabling, is remanded. Entitlement to an increased evaluation for residuals of a left foot stress fracture with plantar fasciitis and hammertoe deformity since July 23, 2003, currently rated as 20 percent disabling, is remanded. Entitlement to an increased evaluation for residuals of a right foot stress fracture with plantar fasciitis and hammertoe deformity since July 23, 2003, currently rated as 20 percent disabling, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1983 to September 1987 with additional periods of reserve service between 1987 and 2003. In September 2009, he testified at a Travel Board hearing before the undersigned. A transcript of the hearing is part of the record. The issues remaining in this appeal have a long procedural history. The Veteran’s disabilities of the back and feet, together with other disabilities no longer part of this appeal, were originally assigned a single rating for fibromyalgia, rated by analogy to rheumatoid arthritis under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5099-5002, and first reached the Board after the Veteran appealed a September 2004 rating decision denying an increased rating for that condition. For the period after July 23, 2003, the Veteran has been assigned one 40 percent rating for fibromyalgia and separate ratings for disabilities of the thoracolumbar spine, right ankle, and bilateral feet. The Agency of Original Jurisdiction (AOJ) reorganized these disability ratings in a rating decision dated November 2012, which the Veteran also appealed. After several remands ordering the AOJ to conduct further development, the Board issued a decision and remand in January 2018. The Board increased the rating assigned to the thoracolumbar spine disability to 20 percent, effective July 23, 2003, but denied a rating higher than 20 percent. The Board also granted increased ratings of 20 percent, respectively, for residuals of stress fractures of both feet with hammertoe deformity, plantar fasciitis, and heel spur syndrome. As in the case of the spine claim, the Board denied ratings higher than 20 percent for both feet. The Board remanded the claim for a total disability rating based on individual unemployability (TDIU) for further development. The Veteran appealed the Board’s January 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2018, counsel for both parties filed a joint motion for partial remand (JMR). In the JMR, the parties agreed to vacate the Board’s denial of ratings in excess of 20 percent for the lumbar spine since May 21, 2012 and for both feet since July 23, 2003. The parties further agreed that the Veteran had abandoned his appeal of the denial of higher ratings for fibromyalgia and that the rulings assigning a 20 percent rating for the spine prior to May 21, 2012, to grant a 20 percent rating for right ankle fracture, and to grant a 20 percent rating for stress fractures of both feet since July 23, 2003 were favorable findings and, therefore, would not be disturbed. By granting the JMR, the Court vacated the Board’s rulings as to the spine after May 21, 2012 and the feet after July 23, 2003 and dismissed the Veteran’s appeal with respect to all other rulings. The denial of TDIU is still before the AOJ, has not yet been certified to the Board, and may be the subject of further development. Accordingly, this remand will address only the issues listed above. 1. Increased Rating for Back Disability In the JMR, the parties agreed to vacate the Board’s denial of an increased rating for the Veteran’s back disability because a VA back examination report, dated August 2016, was inadequate for rating purposes. The August 2016 examiner indicated that the Veteran experienced pain during range of motion testing of the thoracolumbar spine. As the JMR explained, the examiner’s report was inadequate in part because the examiner failed to identify the point in the range of motion test where the Veteran began to experience pain. See Mitchell v. Shinseki, 25, Vet. App. 32, 44 (2011). The JMR further indicates that the August 2016 examiner erred by failing to explain his opinion that pain did not result in functional loss. To remedy the errors identified in the JMR, the Board will remand the claim for an increased rating to the AOJ to arrange a new examination. If the Veteran experiences pain during range of motion testing during the new examination, the examiner should indicate the point at which the pain begins. He or she should also explain any opinion on the issue of whether pain causes functional loss. The new examination report should comply with the requirements of 38 C.F.R. §§ 4.40, 4.45, and 4.59. At the time of the August 2016 examination, the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016) was only a few weeks old and the Court had not yet decided Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Correia, the Court held that adequate range of motion test results include evaluating range of motion for pain on both active and passive motion and in weight bearing and nonweight-bearing. Id. at 170. Pursuant to this requirement, the post-remand examiner should obtain separate sets of test results recording the range of motion, in degrees, after testing using each of the methods identified in 38 C.F.R. § 4.59. In Sharp, 29 Vet. App. 26 (2017), the Court held that, if an examination is not conducted during a flare-up of a musculoskeletal disability, VA examiners have the obligation to elicit information from the claimant about the condition of the relevant joint during flare-ups. Sharp, 29 Vet. App. at 34. On remand, the AOJ must obtain a new thoracolumbar spine examination report which complies with 38 C.F.R. §§ 4.40, 4.45, and 4.59, Mitchell, Correia, and Sharp. 2. Increased Rating for Stress Fractures of the Feet For the Veteran’s service-connected stress fractures of both feet and associated hammertoe deformity, plantar fasciitis, and heel spur syndrome, he has been assigned a 20 percent rating for each foot under 38 C.F.R. § 4.71, DC 5284 (foot injuries, other). Under DC 5284, a 10 percent rating is appropriate for a “moderate” foot injury. The code authorizes a 20 percent rating for a “moderately severe” foot injury, a 30 percent rating for a “severe” foot injury, and a 40 percent rating for the actual loss of use of the foot. Id. In the August 2018 JMR, the parties agreed to vacate the denial of a rating higher than 20 percent for both feet because the Board’s decision failed to explain the reason for concluding that the Veteran’s foot disabilities were “moderately severe” rather than “severe” for the purpose of DC 5284. DC 5284 does not define “moderately severe” or “severe”, nor does the code specifically consider range of motion in the feet. However, VA’s general counsel has concluded that, depending on the nature of the foot injury, 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995) can apply to disabilities rated under DC 5284. See VAOPGCPREC 9-98 (Aug. 14, 1998). There are several references to foot pain in the Veteran’s medical records. For example, an April 2006 podiatry note indicates that the Veteran had pain in both feet and pain with range of motion of the left foot. The most recent VA examination report for the feet, dated July 2016 indicated pain on movement, and less movement than normal. Having considered this evidence, it is possible that, pursuant to the General Counsel’s opinion, 38 C.F.R. §§ 4.40, 4.45 and DeLuca apply to the disabilities of the Veteran’s feet. Because the Court relied on these regulations and that case when deciding Correia and Sharp, it follows that a new examination is required which comply with these cases. Specifically, the July 2016 VA foot examiner indicated that the Veteran told him that flare-ups affected his feet, but contrary to Sharp, did not attempt to obtain information from the Veteran to help estimate the frequency and duration of flare-ups or the extent of any reduced range of motion during flare-ups. Similarly, the examiner did not obtain range of motion test results for the feet using the methods identified in 38 C.F.R. § 4.59. For these reasons, the Board will remand the feet issues for a new examination. The matters are REMANDED for the following action: 1. Obtain and associate with the claims folder copies of all records of the Veteran’s VA treatment since May 2018. 2. Schedule VA examinations to ascertain the current severity of the Veteran’s service-connected thoracolumbar pain syndrome with degenerative changes of the thoracic spine and his service-connected stress fractures with plantar fasciitis and hammertoe deformity of both feet. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disabilities should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran’s thoracolumbar spine and the effective range of motion in both feet, and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33, the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability of the lumbosacral spine and of the feet during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. If the examiner indicates that pain does not cause functional loss with respect to the lumbosacral spine or with respect to either foot, he or she should thoroughly explain the medical reasons for that opinion. 3. The AOJ must ensure that the examination reports requested above are in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Nye, Associate Counsel