Citation Nr: 20025167 Decision Date: 04/13/20 Archive Date: 04/13/20 DOCKET NO. 13-12 321 DATE: April 13, 2020 ORDER Entitlement to service connection for a left knee disorder is granted. From November 15, 2010 to November 18, 2012, a 10 percent rating for a hammer toe of the second left digit is granted. From January 1, 2013, a 10 percent rating for a hammer toe of the second left digit is granted. From November 15, 2010, a 10 percent rating for a hammer toe of third right digit is granted. REMANDED Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. FINDINGS OF FACT 1. Service caused the Veteran's left knee disorder. 2. From November 15, 2010 to November 18, 2012, the Veteran experienced painful motion in his hammer toe of the second left digit. 3. From January 1, 2013, the Veteran has experienced painful motion in his hammer toe of the second left digit. 4. From November 15, 2010, the Veteran has experienced painful motion in his hammer toe of the third right digit. CONCLUSIONS OF LAW 1. The criteria for direct service connection for a left foot disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. From November 15, 2010 to November 18, 2012, the criteria for a 10 percent rating for a hammer toe of the second left digit based on painful motion have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71A, Diagnostic Code 5282. 3. From January 1, 2013, the criteria for a 10 percent rating for a hammer toe of the second left digit based on painful motion have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71A, Diagnostic Code 5282. 4. From November 15, 2010, the criteria for a 10 percent rating for a hammer toe of the third right digit based on painful motion have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71A, Diagnostic Codes 5282. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1973 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned in September 2013. Issue 1: Entitlement to service connection for a left knee disorder Direct Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Merits VA examined the Veteran in July 2010 for his claims of service connection for right and left knee disorders. The examiner's opinion, which is partially obscured in the examination report, reads: This 56 yr old veteran claims that his bilateral knee condition is due to his football playing while in service and due to ___ and running with heavy gear in boots that were not supportive. After review of all of the literature, the knees are weight bearing joints and took a lot of stress with all the weight they had to carry during the repetitive training exercises. Additionally, football is a sport where serious injuries can occur and knee injuries are a common injury to occur in football. The notes in the C-file indicated that the veteran came in to be seen for knee pain 4 times during his service duty and c/o of left knee pain at least on the times as well. Therefore it is at least as likely as not that the knee pain while in the service was the cause or result of the bilateral arthroscopies and patella replacement. The AOJ, based on the above opinion, service connected the Veteran's right, but not left, knee disorder in August 2010. It is unclear why. However, the record reveals the VA examiner supplied an addendum opinion in September 2010 stating that there was no evidence in service of complaints of left knee pain, so there was no nexus. This distinction, however, cannot hold given the basis of the right knee service connection. Specifically, because the AOJ accepted the examiner's finding that "the knees are weight bearing joints and took a lot of stress with all the weight they had to carry during the repetitive training exercises," both knees must, with an equipoise standard, be service connected. The AOJ cannot rely upon this nexus to support granting one claim while denying the other. Based on the foregoing, the Veteran has met all three prongs of a direct service connection for this claim. Therefore, the Board will grant the appeal. Issue 2: From November 15, 2010 to November 18, 2012, entitlement to a compensable rating for a hammer toe of the second left digit Issue 3: From January 1, 2013, entitlement to a compensable rating for a hammer toe of the second left digit Issue 4: From November 15, 2010, entitlement to a compensable rating for a hammer toe of the third right digit Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Merits Analysis The AOJ service connected the Veteran's hammer toe of third right digit and hammer toe of the second left digit in July 2011, effective November 15, 2010. It has rated the hammer toes under Diagnostic Code 5282, 38 C.F.R. § 4.71A. It has rated the hammer toe of third right digit as 0 percent disabling from November 15, 2010. VA has rated the hammer toe of the second left digit as 0 percent disabling from November 15, 2010 to November 18, 2012, 100 percent disabling from November 19, 2012 to December 31, 2012 to account for surgical convalescence, and as 0 percent disabling from January 1, 2013. Under Diagnostic Code 5282, 38 C.F.R. § 4.71A, single hammer toes are rated as 0 percent disabling, and a 10 percent rating is warranted for all toes, unilateral without claw foot. VA examined the Veteran three times during the pendency of the appeal – July 2010, April 2015, and March 2017. None of the three VA examiners determined that the Veteran's hammer toes – one on each foot – impacted all his toes. Therefore, the Board cannot award a compensable rating under Diagnostic Code 5282. However, the Board must consider whether the Veteran is entitled to a compensable rating under 38 C.F.R. § 4.59. The determining factor as to whether a minimum compensable evaluation may be assigned under 38 C.F.R. § 4.59 is whether the appropriate corresponding Diagnostic Code for the joint or periarticular region involved includes a compensable evaluation, as demonstrated in Sowers v. McDonald, 27 Vet. App. 472 (2016). Because Diagnostic Code 5282 allows for a compensable evaluation for hammer toes, compensable evaluations are warranted for painful motion under 38 C.F.R. § 4.59. The Board notes the regulation does not include a specific provision limiting application to major joints or provisions for how to consider groups of minor joints. Thus, major joint involvement or multiple minor joint involvement is not a factor in determining whether a minimum compensable evaluation may be assigned under 38 C.F.R. § 4.59 as it is under 38 C.F.R. § 4.45. Notwithstanding the VA examiner's findings, the Board concludes, based on the Veteran's September 2013 testimony, the Veteran has demonstrated painful motion in his hammer toes. While there was no objective evidence of painful motion on examination, lay evidence of painful motion, pursuant to Petitti v. McDonald, 27 Vet. App. 415 (2015), can support application of 38 C.F.R. § 4.59. Given the foregoing, the Board finds that the Veteran's reports of painful motion support a 10 percent rating under 38 C.F.R. § 4.59 as applied through Diagnostic Code 5282, where the minimum compensable rating for hammer toes is 10 percent. The Board will assign a 10 percent rating for the hammer toe, left foot, from November 15, 2010 to November 18, 2012, and from January 1, 2013. The Board will also assign a 10 percent rating for the hammer toe, right foot, from November 15, 2010. As a final note, the Board reminds the Veteran that VA has separately service connected his bilateral pes planus, which is currently rated at 50 percent disabling, the maximum schedular rating. The pes planus rating separately contemplates the symptoms the Veteran cited during his 2013 hearing regarding his hammer toes, absent the pain addressed above, as articulated in the September 2010 rating decision granting service connection. Therefore, the Board could not consider them when adjudicating the increased rating claim for the hammer toes because this would violate the anti-pyramiding regulation, 38 C.F.R. § 4.14. REASONS FOR REMAND The Veteran contends, as seen in his September 2013 hearing, that his claimed bilateral hip disorder is secondary to his bilateral knee disorders. In the Board's April 2015 Remand, the Board found that a May 2011 VA examination was inadequate based on the Veteran's 2013 testimony, so it remanded for a new examination. VA re-examined the Veteran was in December 2015 to explore the relationship between the bilateral hip disorder and his right knee disorder, but the examiner opined negatively because "the veteran did not have an altered gait when seen by this examiner." The AOJ ordered another examination to explore the relationship between the bilateral hip disorder and his right knee disorder in February 2018, with this examiner also opining negatively because "arthritis in one joint does not cause arthritis in another joint." However, this examiner did not opine on aggravation. Because the Board has service connected the left knee disorder above and the examiners could not have considered this, the Board will remand for a new examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral hip disorder. The examiner must opine on the following: a) Is it as least as likely as not (50 percent probability) that the Veteran’s LEFT KNEE disorder CAUSED his LEFT HIP disorder? Why or why not? b) Is it as least as likely as not (50 percent probability) that the Veteran’s LEFT KNEE disorder AGGRAVATED his LEFT HIP disorder? Why or why not? c) Is it as least as likely as not (50 percent probability) that the Veteran’s RIGHT KNEE disorder CAUSED his RIGHT HIP disorder? Why or why not? d) Is it as least as likely as not (50 percent probability) that the Veteran’s RIGHT KNEE disorder AGGRAVATED his RIGHT HIP disorder? Why or why not? e) Is it as least as likely as not (50 percent probability) that the combined effects of the Veteran’s bilateral knee disorders CAUSED his LEFT HIP disorder? Why or why not? f) Is it as least as likely as not (50 percent probability) that the combined effects of the Veteran’s bilateral knee disorders AGGRAVATED his LEFT HIP disorder? Why or why not? g) Is it as least as likely as not (50 percent probability) that the combined effects of the Veteran’s bilateral knee disorders CAUSED his RIGHT HIP disorder? Why or why not? (Continued on the next page)   h) Is it as least as likely as not (50 percent probability) that the combined effects of the Veteran’s bilateral knee disorders AGGRAVATED his RIGHT HIP disorder? Why or why not? In answering these questions, please expressly address to what extent, if any, the Veteran's altered gait contributed – either through causation or aggravation – to the development of the bilateral hip disorder. Please note that, while the December 2015 examiner did not find evidence of an altered gait, VA treatment records from November 2016 (4/18/2017 CAPRI file) show repeated evidence of an altered gait, so the examiner should assume that the Veteran has had an altered gait for the duration of the appeal. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.