Citation Nr: 19113625 Decision Date: 02/25/19 Archive Date: 02/25/19 DOCKET NO. 17-26 411 DATE: February 25, 2019 ISSUES 1. Entitlement to service connection for hallux valgus, right foot. 2. Entitlement to service connection for high blood pressure. 3. Entitlement to service connection for tinnitus. 4. Entitlement to a disability rating in excess of 10 percent prior to August 5, 2014, and in excess of 40 percent thereafter for Jacksonian, petit mal, and myoclonic seizures (seizure disability). 5. Entitlement to a compensable disability rating for hallux valgus, left foot. 6. Entitlement to a disability rating in excess of 50 percent for migraine headaches. 7. Entitlement to an initial disability rating in excess of 10 percent for adjustment disorder with depressed mood (adjustment disorder). 8. Entitlement to an earlier effective date for the grant of service connection for the seizure disability. 9. Entitlement to an earlier effective date for the grant of service connection for hallux valgus, left foot. 10. Entitlement to an earlier effective date for the grant of service connection for migraine headaches. 11. Entitlement to an earlier effective date for the grant of service connection for the adjustment disorder. 12. Entitlement to a total disability evaluation based on individual unemployability (TDIU). ORDER Entitlement to service connection for high blood pressure is denied. Entitlement to service connection for tinnitus is denied. Entitlement to a disability rating in excess of 50 percent for migraine headaches is denied. Entitlement to an earlier effective date for the grant of service connection for the seizure disability is denied. Entitlement to an earlier effective date for the grant of service connection for hallux valgus, left foot, is denied. Entitlement to an earlier effective date for the grant of service connection for migraine headaches is denied. An effective date of August 1, 2013, but not earlier, for the grant of service connection for adjustment disorder, is granted. Entitlement to a TDIU is granted. REMANDED Entitlement to service connection for hallux valgus, right foot is remanded. Entitlement to a disability rating in excess of 10 percent prior to August 5, 2014, and in excess of 40 percent thereafter for seizure disability is remanded. Entitlement to a compensable disability rating for hallux valgus, left foot, is remanded. Entitlement to an initial disability rating in excess of 10 percent for adjustment disorder is remanded. FINDINGS OF FACT 1. The Veteran does not have, nor has she had at any time during the pendency of the appeal, a current diagnosis of high blood pressure. 2. The Veteran does not have, nor has she had at any time during the pendency of the appeal, a current diagnosis of tinnitus. 3. The Veteran has been assigned the maximum schedular evaluation available for migraine headaches. 4. In a February 2011 rating decision, the RO added mild seizures to the award of service connection for migraine headaches. A notice of disagreement was not received within one year of the date of that decision. 5. In a December 2002 rating decision, the RO granted service connection for migraine headaches and hallux valgus, left. A notice of disagreement was not received within one year of the date of that decision. 6. On August 1, 2014, VA received the Veteran’s fully developed claim for compensation for depression/anxiety, diagnosed as adjustment disorder, and an effective date of August 1, 2013, is assigned for the award of service connection for adjustment disorder, which corresponds to the one-year prior to the date of receipt of the claim for compensation. 7. The Veteran’s service-connected disabilities preclude the physical and mental acts required for substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for high blood pressure have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017). 3. The criteria for a disability rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2017). 4. To the extent that the Veteran is attempting to challenge the finality of the February 2011 rating decision, her claim of entitlement to an earlier effective date for the grant of service connection for seizures is dismissed. Rudd v. Nicholson, 20 Vet. App. 296 (2006). 5. To the extent that the Veteran is attempting to challenge the finality of the December 2002 rating decision, her claim of entitlement to an earlier effective date for the grant of service connection for migraine headaches and hallux valgus, left, is dismissed. Rudd, 20 Vet. App. 296. 6. The criteria for an effective date of August 1, 2013, but no earlier, for the grant of service connection for adjustment disorder is met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 7. The criteria for TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1996 to September 2002. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Historically, the Board notes that service connection for migraine headaches was granted in a December 2002 rating decision with an evaluation of 10 percent, effective September 7, 2002; the date of service connection. The disability rating for migraine headaches was increased to 30 percent in an April 2007 rating decision, effective March 7, 2007. In a February 2011 rating decision, the RO combined migraine headaches and mild seizures and increased the disability rating to 50 percent, effective June 29, 2010. In the February 2015 rating decision on appeal, the RO separated the migraine headaches, reducing the disability rating for the migraine headaches to 30 percent effective December 18, 2014; and assigned a 40 percent disability rating for the seizures effective August 5, 2014. In an April 2017 rating decision, the Veterans Benefits Administration (VBA) increased the evaluation of migraine headaches to 50 percent effective June 29, 2010; effectively, the VBA completely restored the 50 percent disability rating that was granted in the February 2011 rating decision. The VBA also found clear and unmistakable error in the evaluation of the seizures and granted a separate evaluation of 10 percent from June 29, 2010, and an evaluation of 40 percent from August 5, 2014. As such, the Board has characterized these issues on appeal as reflected on the title page. Subsequently, it appears that jurisdiction over the claims regarding the migraine headaches was transferred to the RO in Des Moines, Iowa. However, because this appeal originated from the RO in Waco and does not involve issues dependent on different law and facts, it will be the subject of this decision. See BVA Memorandum No. 01-18-04; VA Purple book 01-18-v1.0.0. Moreover, the Veteran currently resides in Texas; hence, jurisdiction should be changed as appropriate. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran and her attorney have raised the issue of TDIU; therefore, the issue of entitlement to TDIU is before the Board. Subsequent to this case being certified to the Board, the Veteran’s attorney submitted additional evidence with waiver of initial RO consideration. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2017). Service Connection The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Veteran has not been afforded examinations for her claimed high blood pressure or tinnitus. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (West 2014). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed.Cir. 2003). As will be discussed below, based on the facts of this case, VA has no duty to provide a VA examination or obtain a medical opinion, even under the low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In the instant case, there is no presumed service connection as the disabilities claimed have not been diagnosed. In order to establish service connection for the claimed disorder, there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran has not been diagnosed with high blood pressure or tinnitus during the pendency of these claims; accordingly, the claims fail as Hickson element (1) is not met. Based upon review of the evidence above, the Board finds the Veteran’s claim for service connection for high blood pressure and tinnitus must fail because the most recent medical evidence does not indicate current diagnoses of these conditions. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans’ benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). To the extent that the Veteran's submission of claims of entitlement to service connection for hypertension and tinnitus indicates a belief that she currently has the disorders and they are linked to active duty, the Board finds this evidence to be of little probative value. The Veteran is competent to report ringing in the ears; however, she specifically denied having tinnitus in VA treatment records in April 2017. There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical diagnosis or opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Other than submission of the hypertension and tinnitus claims, the appellant and her representative have provided no evidence as to the actual existence of the disorders and their etiology and the other evidence of record is devoid of competent evidence documenting the presence of tinnitus and hypertension. No actual argument was submitted on the Veteran’s behalf by the Veteran’s attorney. The failure to provide even minimal argument or evidence in support of the claim completely undercuts the case. A review of the evidence and argument demonstrates it has not even crossed the threshold for establishing a reason to obtain a VA examination in support of the claim. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit-of-the-doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). Increased Ratings Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 ; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. 4.1 ; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Entitlement to a disability rating in excess of 50 percent for migraine headaches. The service connected migraines are currently evaluated as 50 percent disabling pursuant to 38 C.F.R. § 4.124 (a), Diagnostic Code 8100, effective June 29, 2010. Under this Diagnostic Code, 50 percent is the maximum schedular evaluation available for migraine headaches. See 38 C.F.R. § 4.124 (a), Diagnostic Code 8100. The Veteran’s reported symptoms do not more closely resemble another disability that could provide the Veteran with a higher disability rating. Therefore the Veteran is already in receipt of the maximum schedular evaluation, and no higher evaluation may be granted on a schedular basis. The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is warranted in this case. The Board finds that the Veteran’s symptoms of pain, marked interference with her employment, reduced power of concentration to include an inability to speak, and required repeated visits for medical care, to include chemo denervation are contemplated by the schedular rating criteria which contemplate very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. Neither the facts of the case nor the Veteran’s allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board”) (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Earlier Effective Date 1. Migraine Headaches, Left Hallux Valgus, and Seizures Section 5110(a), title 38, United States Code, provides that “[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... of compensation... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” When an application for disability compensation is received within one year of the date of the veteran’s discharge or release from service, the effective date of such award shall be the day following the veteran’s release. 38 U.S.C. § 5110 (b)(1) (West 2014). In a December 2002 rating decision, the RO granted service connection for migraine headaches and hallux valgus, left, both effective September 7, 2002. In a February 2011 rating decision, the RO added mild seizures to the award of service connection for migraine headaches, effective June 29, 2010. In the February 2015 rating decision on appeal, the RO separated the seizure disability from the migraine headaches, stating that it warranted its own evaluation, and continued the 0 percent rating for hallux valgus, left. The Board finds that service connection was in effect for migraine headaches and hallux valgus, left, effective in the December 2002 rating from September 7, 2002, and service connection was in effect for the seizure disability effective in the February 2011 rating decision from June 29, 2010; in the February 2015 rating decision, the RO simply separated the migraine headaches and seizures to accurately reflect the diagnosed conditions. As such, these claims of entitlement to an earlier effective date are tantamount to freestanding claims for earlier effective dates. The Board notes that in Rudd v. Nicholson, 20 Vet. App. 296, the Court held that once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE). The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding claim is raised, the Court has held that such an appeal should be dismissed. Id. at 299-300. The Veteran essentially seeks revision of the prior final December 2002 and February 2011 rating decisions by means of a claim for an earlier effective date. While the Board expresses no opinion on the eventual success of a motion for revision of a prior final decision on the basis of CUE, the proper way to assert error in a final decision would be through an allegation that the RO’s December 2002 and February 2011 decisions contained CUE. 38 U.S.C. § 5109A; see Moody v. Principi, 360 F.3d 1306, 1309 (Fed.Cir.2004). The Board cannot adjudicate the Veteran’s earlier effective date claims to the extent that it attempts to reopen prior final rating decisions, including on the basis of CUE, without violating the Court’s express prohibition against freestanding earlier effective date claims found in Rudd. Id. Therefore, there is no legal entitlement to an earlier effective date for the grant of service connection for migraine headaches, left hallux valgus, and the seizure disability. Sabonis v. Brown, 6 Vet. App. 426 (1994) (When the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). 2. Adjustment Disorder On August 1, 2014, the Veteran filed a claim for service connection for depression/anxiety, diagnosed as adjustment disorder, using the Fully Developed Claim (FDC) process. Under the FDC framework, a claim is submitted in a “fully developed” status, limiting the need for further development of the claim by VA. According to 38 U.S.C. § 5110 (b)(2)(A), “the effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.” A claim for service connection submitted through the FDC process by definition meets the statutory requirement of “an original claim that is fully-developed.” See 38 U.S.C. § 5110. This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. However, 38 U.S.C. § 5110 (b)(2)(A) does not establish that the effective date for claims filed under the FDC process is automatically one year prior to the date of the filing of the formal claim for service connection. Instead, the statute states that the effective date shall be fixed in accordance with the facts found, so long as the date established by the facts is not earlier than one year prior to the date of the receipt of the application for service connection. The Board notes that the Veteran was granted service connection for adjustment disorder as secondary to her service-connected migraine headaches. To this point, in her February 2015 VA examination, the examiner opined that Veteran's adjustment disorder with depressed mood was at least as likely as not secondarily related to her service-connected migraine headaches. As noted above, service connection for migraine headaches was granted effective September 7, 2002. In essence, this supports that the adjustment disorder was present a year prior to the date of her claim under the FDC program. Based on the foregoing, the Board will assign an effective date of August 1, 2013, which corresponds to the one-year period prior to the date of receipt of the claim. The fact that a diagnosis of adjustment disorder might have been present more than one-year prior to the receipt of the August 1, 2014, claim is not relevant to the assignment of an effective date in this matter, as the date shall not be earlier than the date that is one year before the date of receipt of the application. 38 U.S.C. § 5110 (b)(2)(A). The mere presence of medical evidence of a disability does not show an intent on the Veteran’s part to seek service connection and therefore does not constitute a claim; rather, the Veteran must assert a claim either expressly or impliedly. VA is not required to conjure up issues not raised by the claimant. See Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (noting that although VA must interpret a claimant’s submissions broadly, VA is not required to conjure up issues not raised by claimant). Therefore, the Board declines to view any references to adjustment disorder in medical records prior to August 1, 2013, as a claim for VA compensation. There is otherwise no legal basis for the assignment of an effective date earlier than August 1, 2013, for the grant of service connection for adjustment disorder. TDIU TDIU is granted where service-connected disabilities are so severe that it is impossible for the Veteran to secure or follow a substantially gainful occupation. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration is given to the Veteran’s level of education, special training, and previous work experience. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran meets the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16(a) and such service-connected disabilities impose sufficient physical and mental limitations to preclude substantially gainful employment. The Veteran is service-connected for migraine headaches, rated as 50 percent disabling; seizure disability, rated as 40 percent disabling; adjustment disorder, rated as 10 percent disabling; left foot hallux valgus, rated as 0 percent disabling, and fibrocystic disease, rated as 0 percent disabling. Her combined disability evaluation is 70 percent. VA headaches and seizure disorder disability benefits questionnaires in December 2014 showed that the Veteran reported nausea, sensitivity to light, and changes in vision due to her headaches. She reported brief interruption in consciousness or conscious control, episodes of staring, episodes of sudden jerking movement of the arms/trunk/head, episodes of impairment of visions, and episodes of tremors due to her seizure disability. The examiner found her “unemployable because of the migraines and seizures”. In June 2016 the Veteran submitted a lay “buddy” statement, attesting that depression took over the Veteran’s life; that she was unable to maintain the once independent and active lifestyle she once enjoyed. The Veteran submitted a VA headaches disability benefits questionnaire in June 2016 that showed symptoms to include nausea, sensitivity to light, changes in vision, sensory changes, and dizziness. She also reported reduced power of concentration and that, during a migraine, she would lose the ability to speak. The examiner opined that the migraines completely incapacitated her and prevented her from maintaining gainful employment. The Veteran submitted a VA mental disorders disability benefits questionnaire in August 2016 in which her symptoms were noted to include difficulty in adapting to stressful circumstances, including work or a work-like setting. In an attachment, the examiner stated that she could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to her adjustment disorder. The examiner opined that the adjustment disorder prevented the Veteran from maintaining substantially gainful employment. The Veteran’s mother submitted a statement in July 2018, attesting to her inability to work a full-time job due to the frequency of her headaches and seizures. The Veteran submitted an August 2018 statement from a vocational consultant in which the consultant stated that she was totally and permanently precluded from performing work at a substantial gainful level due to the severity of her service-connected seizures, migraine headaches, adjustment disorder, hallux valgus of the left foot, and fibrocystic disease. After careful review of the record, the Board finds the Veteran experiences functional limitations due to service-connected disabilities that preclude substantially gainful employment. See Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (TDIU may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran’s disability does not prevent him or her from performing work that would produce sufficient income to be other than marginal). Therefore, affording the Veteran all benefit-of-the-doubt, the Board finds that the Veteran is unable to perform the physical and mental acts required for substantially gainful employment due to her service-connected disabilities. Accordingly, TDIU is granted. REASONS FOR REMAND The Board finds that additional evidentiary development is required before the remaining claims on appeal are adjudicated. Hallux Valgus Right and Left Foot In regards to the claim for service connection for hallux valgus, right foot, the Veteran was afforded a VA examination in January 2015 in which the examiner diagnosed right hallux valgus from 2015. The examiner stated that the Veteran reported ongoing worsening of symptoms in the left foot but specifically denied any pain or other problems with the right foot. The examiner opined, therefore, that it was less likely than not that the Veteran had a right foot condition that was incurred in or caused by service. Clarification is required as to the etiology of the right foot hallux valgus as the Board finds that the January 2015 opinion is conclusory, offering no rationale regarding this conclusion that right foot hallux valgus is not related to service as the Veteran complained of ongoing symptoms/pain with her left foot but not her right. See, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). In regards to the claim for an increased rating for hallux valgus, left foot, in this January 2015 examination, the Veteran also reported flare-ups that sometimes occurred with increased standing and walking but occasionally occurred for no identifiable reason; however, motion loss in terms of degrees was not provided. There was evidence of pain with weight-bearing and evidence of pain when the joint was used in non-weight bearing; however, the results of range of motion testing were not listed. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant’s joint disability and account for painful motion. However, compelled by § 4.59’s place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. As the January 2015 examination report did not provide all of the information specified by Correia and Sharp, the claim must be remanded for a new VA examination to obtain the information necessary to properly adjudicate this claim; this examination should also address the etiology of the claimed right foot hallux valgus. Seizure Disability and Adjustment Disorder The Veteran was most recently afforded a VA examination for her seizure disability in December 2014. She was most recently afforded a VA examination for her adjustment disorder in February 2015. As noted above, the Veteran submitted a lay “buddy” statement in June 2016, attesting that depression took over the Veteran’s life; that she was unable to maintain the once independent and active lifestyle she once enjoyed. Her mother submitted a statement in July 2018, attesting to the Veteran having to move back in with her due in part to her seizures. As such, the Board finds that the Veteran should be afforded VA examinations on remand to address the current severity of her seizure disability and adjustment disorder. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by her as pertinent to her claims. 2. Then, the Veteran should be afforded the appropriate VA examination to determine the nature and etiology of the claimed right foot hallux valgus and current degree of severity of her service-connected left foot hallux valgus. The electronic claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on review of the files and examination of the Veteran, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) with respect to any right foot hallux valgus present at any time during the pendency of this claim, that the disability originated during active duty or is otherwise etiologically related to service. All testing deemed necessary must be conducted and results reported in detail. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s left foot hallux valgus, i.e., the extent of the Veteran’s pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment. A full and complete rationale for any opinions expressed is required. 3. The Veteran should be afforded the appropriate VA examination to determine the current degree of severity of her service-connected seizure disability and adjustment disorder. The electronic claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. A full and complete rationale for any opinions expressed is required. 4. Upon completion of the examinations ordered above, review the examination reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. (Continued on the next page)   5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and her attorney with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. G. A. Wasik Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel