Citation Nr: 21063247 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 09-13 590 DATE: October 13, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent prior to March 1, 2021 and in excess of 40 percent thereafter for varices of the left lower extremity is remanded. Entitlement to a disability rating in excess of 10 percent prior to August 5, 2014 and in excess of 30 percent thereafter for partial amputation of left second toe is remanded. Entitlement to service connection for a right knee condition as secondary to service-connected partial amputation of left second toe is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1984 to June 1992. The Veteran was granted service connection and assigned noncompensable ratings for the issues on appeal in a September 1992 rating decision. These matters arrive again at the Board of Veteran's Appeals (Board) originating from an August 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, the RO increased the Veteran's disability rating for amputation of second left two from noncompensable to 10 percent, effective October 12, 2007. In August 2010, the Veteran presented testimony at a Travel Board hearing in St. Louis, Missouri before the undersigned Veterans Law Judge. A transcript is on record. In November 2010, the Board, in pertinent part, remanded the claims for additional development. In October 2011, the RO increased the Veteran's disability rating for varices of the left thigh from noncompensable to 10 percent, effective October 19, 2007. In April 2014, the Board remanded the claims for further development, to include whether the Veteran's 1992 rating decision was final regarding the Veteran's heart condition. In June 2015, the Board denied ratings in excess of 10 percent for amputation of the second left toe and varices of the left thigh. The Veteran appealed, and the United States Court of Appeals for Veterans Claims (Court), by an August 2016 Order, granted a Joint Motion for Partial Remand (JMPR), vacating the Board's decision to deny increased ratings and remanding the issues for further development. The JMPR also noted the issue of whether the Veteran's September 1992 rating decision was final in relation to the Veteran's increased ratings claims for her second toe amputation and varices of the left thigh should be referred to the RO for initial consideration. In April 2017, the Board remanded the Veteran's increased rating claims for further development. In December 2018, the Board denied a rating in excess of 10 percent prior to August 5, 2014, but from that date granted a rating of 30 percent for the Veteran's left second toe amputation. The Board also remanded the Veteran's increased rating claim for his left thigh varices. The Veteran appealed the Board's December 2018 denial of increased ratings for the Veteran's second left toe amputation. By an October 2019 JMPR approved by the Court, the parties vacated the portion of the Board's decision denying increased rating claims. In March 2020, the Board remanded the Veteran's increased rating claim for second left toe amputation for another VA examination, to determine which additional left foot conditions experienced by the Veteran may be attributable to her left second toe amputation. This examination was provided in January 2021. In December 2020, the Board remanded the Veteran's increased rating claim for varices of the left thigh for a VA examination to determine whether a very mild degree of pigmentary deposition and discoloration constitute stasis pigmentation to support a higher rating. The VA examiner was also asked to determine if the varicosities of the left knee, and spider veins and trade edema in the left ankle should be medically considered the same disease entity as the varicose veins of the left thigh, or whether they are distinct and distinguishable conditions. Finally, the Board requested that the examiner identify the month and year, if feasible, of conditions found to be associated with the Veteran's varicose veins. This examination was provided in March 2021. The appeals have since been remerged for readjudication. REFERRED ISSUE The August 2016 Court-approved JMPR requested the RO consider whether the Veteran's September 1992 rating decision was final in the context of the Veteran's claim for increased ratings for second left toe amputation and left thigh varices; however, the RO has not provided an initial review of this question. As such, the Board does not yet have jurisdiction over it and the question of whether the Veteran's September 1992 rating decision became final as it relates to the Veteran's herein increased rating claims is referred to the RO for initial consideration, consistent with instruction in the August 2016 JMPR. 1. Entitlement to a disability rating in excess of 10 percent prior to March 1, 2021 and in excess of 40 percent thereafter for varices of the left lower extremity is remanded. The Veteran seeks an increased rating for her varicose veins of the left thigh. Notably, the Board has recharacterized the Veteran's left thigh varices as varices of the left lower extremity, consistent with the March 2021 examiner's determination that the Veteran's left knee and ankle varices are part of Veteran's service-connected left thigh varicose veins and diagnosis of "venous varicosities, left leg/thigh...." Regrettably, an addendum opinion is required before adjudication of this claim. Stegall v. West, 11 Vet. App. 268 (1998). Per the Board's December 2020 remand, the March 2021 examiner was to identify additional conditions related to the Veteran's left thigh varices and determine when, if feasible, the conditions began and/or resolved. In response, the examiner identified persistent edema, persistent eczema, and persistent stasis pigmentation. However, the examiner did not identify, in their opinion, when these additional conditions began. Such a determination is critical, when the existence of persistent edema, stasis pigmentation, and persistent eczema earlier than March 2021 could qualify the Veteran for a rating in excess of 10 percent earlier than March 1, 2021. On remand, the March 2021 examiner must determine when the Veteran's service-connected left lower extremity varices first manifested persistent edema and provide an explanation for this determination. Id. 2. Entitlement to a disability rating in excess of 10 percent prior to August 5, 2014 and in excess of 30 percent thereafter for partial amputation of left second toe is remanded. This claim must be remanded to ensure the Veteran is provided an adequate VA examination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to obtain an examination, it must ensure that it is an adequate one); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). Here, the January 2021 VA examiner was asked to determine which additional left foot conditions were attributable to the Veteran's service-connected partial second left toe amputation. Unfortunately, the examiner began their opinion stating, "the only disability that is directly related to the Veteran's service-connected left 2nd toe partial amputation is local pain and loss of sensation (secondary to scar formation) as well as recurrent callus formation and minor gait abnormality with limp." The examiner went on to say, "this is a localized and isolated left 2nd toe problem." However, the Veteran is service connected for left knee, lower back, and psychiatric disabilities each as secondary to her partial second left two amputation. These determinations are supported by medical opinions on record. Thus, both above statements made by the January 2021 examiner were inaccurate ones. Since they formed the basis of the examiner's negative opinion, it is inadequate; and a remand is required to provide the Veteran an adequate examination on the nature and severity of her left second toe partial amputation. 3. Entitlement to service connection for a right knee condition as secondary to service-connected partial amputation of left second toe is remanded. In Bailey v. Wilkie, 2021 U.S. App. Vet. Claims LEXIS 13, 35, the Court held that "VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." In an August 2021 filing, the Veteran's representative argued the Veteran's partial amputation of the left second toe has contributed to degenerative changes in both the Veteran's knees. Notably, the Veteran is service-connected for left knee degenerative arthritis as secondary to gait changes produced by her partial toe amputation. The August 2021 filing also included Mayo Clinic evidence to this affect towards supporting service connection for degenerative changes in her right knee, and, in effect, requested that the medical evidence first be reviewed at the regional level. Accordingly, the claim of entitlement to an increased rating for the Veteran's second left toe partial amputation has been expanded to include a claim for service-connection for a right knee condition. See also, Roberson v. Principi, 251 F. 3d 1378, 1384 (2001) ("VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations."). A remand is thus required to provide the Veteran an examination as to whether her right knee degenerative changes are proximately caused or aggravated by her service-connected left second toe partial amputation. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from the March 2021 VA examiner clarifying when the identified persistent edema, stasis pigmentation, and persistent eczema began and/or resolved during the period on appeal (from August 2007 to the present). The claims file must be made available to the examiner and the examiner should note a review of such in the examination report. The examiner must support each determination as to when the conditions began with a complete rationale. A complete rationale is one with clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. 2. Schedule the Veteran for a VA examination to determine the nature and severity of her partial amputation of the left second toe, both currently and retrospectively over the entire claim period (from October 2007 to the present). The claims file must be made available to the examiner and the examiner should note a review of such in the examination report. This must be conducted at a VA facility other than the one where the Veteran works and not be performed by the January 2021 examiner. All pertinent symptomatology and findings must be reported in detail. Any necessary tests or studies should be conducted and reported in detail. The examiner must address what symptoms and impact on functioning are attributable to the partial amputation of the left second toes that are present and have been present over the claim period (from October 2007 to the present). The examiner should address any intervals of greater or lesser impairment and the extent of impairment during those intervals. Furthermore, the examiner should address the effects of any pain associated with the left second toe partial amputation and extent of the impairment caused during flare-ups and/or during periods of repeated use. The examiner is advised that the specific requests in this examination are necessary to comply with a Joint Motion approved by the United States Court of Appeals for Veterans Claims (Court), as well as to address contentions of the Veteran and her representative. To comply with the Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing of both feet, and address whether any reduced range of motion or functioning of the left foot is attributable to the Veteran's partial left second toe amputation, and if attributable to other causes or other impairments the examiner should explain what these other causes or impairments are and whether they are distinguishable in their symptoms or effects on functioning from symptoms or effects on functioning due to the partial left second toe amputation. 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. Additionally, the Veteran has, in contentions over the claim period, sought to attribute to the partial left second toe amputation symptoms, impairments, and effects including functional loss; being unable to sit, stand, or walk for long periods; fatigability; lack of endurance; weakness; limitations of range of motion of the toes or the whole foot; trigger toe; keratoma/callus formation; hallux valgus (bunions); hammertoes; hallux rigidus; arthritis; plantar fasciitis; swelling or edema of the whole foot; pain requiring rest and elevation; and (localized) hypertrophy and hardening of tissue. The examiner must address which of these are or have been present during the claim period and attributable to the partial left second toe amputation and which have not been or are not present and attributable to the partial left second toe amputation. The examiner should address other disabilities which may impair the Veteran's use of the lower extremities and/or the Veteran's functioning generally and which are not attributable to the partial left second toe amputation, and whether such other impairments are distinguishable in their symptoms or impacts on functioning from that due to the partial left second toe amputation. The examiner should specifically note any VA and private treatment and examination records reflecting significant impairment due to other causes distinguishable in their symptoms or effects on functioning from that due to the partial left second toe amputation. The examiner must also address separately whether having to rest and elevate her foot, inability to walk more than 10 to 15 minutes at a time, having a bunion, having pain in the joints in her lower leg, having stiffness in her toes, and having to attending physical therapy are each attributable to the partial left second toe amputation or are each not distinguishable in their symptoms and effects on functioning from that attributable to the partial left second toe amputation. The examiner should address impact on functioning of any of these signs or symptoms which are not distinguishable in their symptoms and effects on functioning from that of the partial left second toe amputation. Finally, the examiner should also address any exceptional or unusual circumstances associated with the partial left second toe amputation having effects on functioning or work capacity or frequency of hospitalization, or other adverse circumstances attributable to the Veteran's partial left second toe amputation which are not generally recognized as associated with a partial amputation of a second toe The examiner should provide a complete rationale for these conclusions. 3. Schedule the Veteran for a VA examination to determine the etiology of the Veteran's right knee degenerative changes. The claims file must be made available to the examiner and the examiner should note a review of such in the examination report. After review of the claims file and examination of the Veteran, the examiner must opine on whether the Veteran's right knee degenerative arthritis is at least as likely as not (50 percent or greater probability) (1) proximately due to or (2) aggravated by the Veteran's service-connected partial amputation of the second left toe. In rendering this decision, the examiner is asked to comment on the Mayo Clinic article submitted by the Veteran's representative in August 2021. The VA examiner must provide separate findings and rationales relating to causation and aggravation. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. A complete rationale must be provided for all opinions rendered. 4. Then, readjudicate the claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, Associate 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.