Citation Nr: 21069327 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-48 474 DATE: November 18, 2021 ORDER Entitlement to a 20 percent disability rating for the Veteran's service-connected degenerative joint disease of the right great toe is granted. Entitlement to a disability rating in excess of 30 percent for the Veteran's service-connected tension headaches from April 26, 2016 to January 21, 2020 has been withdrawn. REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected lumbosacral strain with bilateral sacroiliac joint dysfunction for the period prior to April 26, 2016, and in excess of 20 percent, thereafter, is remanded. Entitlement to a disability rating in excess of 30 percent for the Veteran's service-connected tension headaches for the period on appeal from October 8, 2020, is remanded. FINDINGS OF FACT 1. For the period on appeal, the Veteran's degenerative joint disease of the right great toe more closely approximated a moderately severe impairment due to pain. 2. Prior to the issuance of a decision in the appeal, the Veteran withdrew the above issue of entitlement to a disability rating in excess of 30 percent for his service-connected tension headaches for the period from April 26, 2016 to January 21, 2020, currently on appeal in a November 2020 correspondence. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a 20 percent disability rating for the Veteran's service-connected degenerative joint disease of the right great toe have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5284. 2. The criteria for withdrawal of the appeal for entitlement to a disability rating in excess of 30 percent for the Veteran's service-connected tension headaches from April 26, 2016 to January 21, 2020 by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2004 to May 2006 and from November 2006 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in an October 2020 rating decision, the RO increased the evaluation of the Veteran's tension headaches disability to 50 percent, effective January 21, 2020 to October 7, 2020. The 30 percent disability rating was then continued, effective October 8, 2020. The 50 percent disability rating is the maximum rating allowed for migraines under Diagnostic Code 8100. Additionally, as explained below, the Veteran has withdrawn his increased rating claim for the period prior to January 21, 2020. As such, the Board will focus exclusively on whether the Veteran is entitled to a disability rating in excess of 30 percent disabling for the period beginning October 8, 2020, as the 30 percent disability rating did not represent a total grant of benefits sought on appeal. AB v. Brown, 6 Vet. App. 35 (1993). When this case was last before the Board in May 2019, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with examinations to address the current severity of his service-connected disabilities and to obtain any outstanding treatment records. The Veteran was provided with appropriate examinations and outstanding records were obtained. As such, the Board finds that the AOJ substantially complied with the directives in the May 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As a final matter, the Board notes that, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In this case, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Moreover, as the Veteran has not contended, nor does the evidence show, that his underlying disabilities render him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. As such, the issue of entitlement to a TDIU is not before the Board at this time, and no further action is required. Increased RatingLegal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran's claims. Right Toe Disability The Veteran's right toe disability is currently rated as 10 percent disabling under Diagnostic Code 5281-5280. Under Diagnostic Code 5281, unilateral hallus rigidus, the disability is rated as severe, hallux valgus. Hallux valgus is rated under Diagnostic Code 5280. Under Diagnostic Code 5280, 10 percent is the highest rating available. A 10 percent rating is warranted when the hallux valgus is severe, if equivalent to amputation of the great toe. A 10 percent rating also is warranted when the hallux valgus is operated with resection of the metatarsal head. The Board also notes that Diagnostic Code 5284 provides a 10-percent rating for impairment of moderate degree, a 20-percent rating for moderately severe impairment, and a 30-percent rating for severe impairment. 38 C.F.R. § 4.71a. The Note to Diagnostic Code 5284 indicates that a maximum 40-percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. "Loss of use of a foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot and whether balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. The Board acknowledges that the terms "moderate", "moderately severe", and "severe" are not defined under VA law and appear to have no commonly accepted medical definition. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. When evaluating musculoskeletal disabilities based on the limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). The Board notes that while VA revised the criteria for evaluating musculoskeletal disorders effective February 7, 2021, there were no changes to the rating criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5284. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). The Board is aware that there were changes made to Diagnostic Codes 5002, 5003, and 5010 affecting arthritis. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. At the outset, the Board finds that the criteria in effect prior to February 7, 2021, is more favorable to the Veteran. Notably, consideration was given to assigning a higher rating for arthritis; however, the Veteran's left toe disability is not rated on limitation of motion and there has been no x-ray evidence of involvement of two or more joints affected. 38 C.F.R. § 4.7a, Diagnostic Code 5003, 5010 (2020); 38 C.F.R. § 4.7a, Diagnostic Code 5002, 5003, 5010 (2021). Analysis As noted above, the Board notes that the Veteran's right great toe was rated at 10 percent under Diagnostic Codes 5281-5280. A 10 percent rating is the maximum schedular rating under this Diagnostic Code. However, the Board finds that that a rating under Diagnostic Code 5284 is more appropriate for the Veteran's disability given the reported symptoms and medical evidence of record. For the reasons below, the Board finds that the Veteran is entitled to a 20 percent disability rating for his right great toe degenerative joint disease under Diagnostic Conde 5284. The Veteran was afforded a May 2016 VA examination regarding his increased rating claim. The Veteran reported experiencing constant pain worse with walking and toe flexion. The examiner documented that the Veteran takes over the counter medication and that he had done therapy and cortisone injections in the past to alleviate symptoms. The examiner did not document flare-ups but noted that the Veteran's degenerative joint disease of his great right toe was a foot injury/other condition with mild severity. The Veteran was next provided an August 2017 VA examination regarding his increased rating claim. During the examination the Veteran reported that he experienced pain which impeded his ability to do prolonged activities while weight bearing. The Veteran reported that he experiences flare ups. Though the examiner does not document the severity of the Veteran's symptoms during a flare up, they reported that the Veteran experiences loss of range of motion, an altered gait pattern, and a limited walking/standing capacity. The examiner reported the Veteran had mild or moderate hallux rigidus on the right side. (The Board notes that this is the only VA examiner to document hallux rigidus, as no other examiner indicated the Veteran experienced this particular symptom/diagnosis). In response to the May 2019 Board Remand, the Veteran was next afforded a January 2020 VA examination regarding the severity of his right toe disability. The Veteran reported that he experienced pain when he is on his feet too long or whenever he runs for a long period of time. The Veteran reported that his condition causes an altered gait pattern which limited his standing and walking capacity. The examiner documented that the Veteran's right foot experienced pain on physical examination, pain on movement, pain on weightbearing/non-weight-bearing, a disturbance of locomotion, and interference with standing. The examiner documented that the Veteran's degenerative joint disease of his great right toe was a foot injury/other condition with mild severity and that the Veteran required custom inserts in order to treat his condition. The examiner noted the Veteran's altered gait pattern and limited walking/standing capacity causes functional loss with repeated use over time, however, the examiner noted that they were unable to determine the severity of the Veteran's right great toe disability throughout the rating period. The Veteran was next afforded an October 2020 VA examination. The Veteran reported that he experienced constant pain in his right great toe which increased with physical activity. He reported it was a dull pain that became sharp depending on how he moved his foot. The Veteran reported experiencing flare-ups daily precipitated by walking, flexing part of his foot, physical activity, and use of the big toe. The examiner classified the severity of the Veteran's flare-ups as moderately severe. The examiner noted that the Veteran's foot condition chronically compromised his weight bearing and required custom shoe inserts. Pain was noted on weight bearing, non-weight-bearing, and with repetitive use over time. The Veteran's medical treatment records document continued treatment for and complaints of right great toe pain. Further, the Board notes that a podiatrist has recommended that the Veteran undergo a joint replacement or fusion regarding his claimed condition. Based on the symptomatology, diagnoses, and relevant medical history, the Board finds that the Veteran's right toe disability more closely approximates a rating of 20 percent for the period on appeal. Notably, the Veteran's right toe disability became moderately severe during his flareups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). A higher rating of 30 or 40 percent is not warranted as there is no evidence that supports a finding that the Veteran's right toe disability is productive of severe impairment. As reflected by above examination reports, although he has pain with walking, he retains the ability to walk, and his disability caused at worst moderately severe functional limitations. A 40-percent rating is not warranted as the evidence does not suggest, nor does the Veteran contend, that he has loss use of his right foot. The Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that his current disability entitles him to a higher disability rating, such statements are inconsistent with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Furthermore, the Veteran's subjective complaints are fully contemplated by the currently assigned staged rating for a moderately severe foot condition rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); De Luca v. Brown, 8 Vet. App. 202 (1995). The Board has also considered application of other diagnostic codes. Here, the Veteran does not have claw foot, Morton's disease, hallux valgus, hammer toes, or hallux rigidus. The evidence shows that the Veteran would not be entitled to higher ratings under any applicable relevant diagnostic codes. In sum, the Board finds that the preponderance of the evidence shows that the Veteran is entitled to a 20 percent disability rating under Diagnostic Code 5284 for his service-connected right toe disability, for the period on appeal. WithdrawalIncreased Rating for Tension Headaches from April 26, 2016 to January 21, 2020 The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In Hembree v. Wilkie, the United States Court of Appeals for of Veterans Claims held that written withdrawals of an appeal are governed by the application regulations instead of DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (requiring a withdrawal to be explicit, unambiguous, and done with a full understanding of the consequences.) See 33 Vet. App. 1,7 (2020). The applicable regulation is 38 C.F.R. § 19.55, which requires that the withdrawal include the name of the appellant and the file number, and a statement that the appeal is withdrawn. See 38 C.F.R. § 19.55(b)(1). The Veteran or representative must also specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. Under 38 C.F.R. § 19.55(c) withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement as to all issues to which the withdrawal applies. In the present case, in a November 2020 correspondence, the Veteran indicated that he was no longer seeking a higher disability rating for his service-connected tension headaches for the period from April 26, 2016 to January 21, 2020. Applying the relevant VA regulation, the Board finds the Veteran properly withdrew this claim on appeal. Thus, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. In this regard, although the Veteran's representative submitted an Appellant's Post-Remand Brief on this matter in April 2021, the Board is confident this was based on error, namely lack of review of the Veteran's November 2020 withdrawal of the issue in his claims file. In any event, the Veteran's withdrawal is effective November 16, 2020, the date it was received by the Board, so his representative's subsequent argument is of no consequence to this matter. See 38 C.F.R. § 19.55(b)(3). In sum, for reasons and bases outlined above, there remain no allegations of error of fact or law for appellate consideration, and this appeal is dismissed. 38 U.S.C. § 7105; 38C.F.R. § 19.55. REASONS FOR REMAND Lumbosacral Strain with Bilateral Sacroiliac Joint Dysfunction While the Veteran was provided with January 2020 and October 2020 VA examination regarding his lumbar spine condition, the Board finds that further development is required before adjudication on this issue can proceed. In a recent decision, the United States Court of Appeals for Veterans Claims (CAVC) indicated that when evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosisi.e., functional loss consistent with that contemplated by ankylosis. See Chavis v. McDonough, No. 18-2928 (April 2021). As such, the Board finds a new retrospective medical opinion is warranted to address whether the Veteran had ankylosis of his lumbar spine, or the functional equivalent thereof. Further, the Board notes that as part of the May 2019 Board Remand, the examiners were required to discuss the Veteran's prior May 2016 and August 2017 examinations and provide retrospective opinions regarding whether the Veteran would have been reduced in motion if he had been tested in both passive and active motion and weight bearing and non-weight bearing. The examiners were to describe the loss of range of motion in degrees, and if unable to provide the requested opinion the examiner was to clearly explain the basis for that decision. The Board notes that the January 2020 VA examiner indicated that he would be unable to determine whether the Veteran's range of motion from the earlier examinations would have been reduced if tested in both active and passive motion and in weight bearing and non-weight-bearing. However, the examiner indicated that the Veteran would have had functional loss during repetitive use over time, though he did not provide any estimates regarding what this functional loss would be in degrees. Additionally, the October 2020 examiner only discussed passive range of motion in their retrospective opinion. As such, the Board finds that an additional retrospective opinion is required in order to opine on the degree of functional loss caused by the Veteran's repeated use over time in relation to the May 2016 and August 2017 examinations. Tension Headaches When considering a claim for an increased disability rating, the Board must not consider the ameliorative effects of medication unless those effects are explicitly contemplated by the relevant rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). In this case, the Veteran's headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100 which do not mention the effects of medication. Thus, the ameliorative effects of the Veteran's medications are not for consideration in rating these disabilities. Assessing the likely nature and severity of the Veteran's headaches absent the ameliorative effects of the prescribed medications throughout the relevant period requires medical knowledge and expertise. The Board notes that the Veteran was provided with a January 2020 VA Headaches examination. During this examination the Veteran reported many symptoms regarding his headaches and the examiner indicated that the Veteran experienced characteristic prostrating attacks of migraine headaches once every month and has very prostrating and prolonged attacks of migraine/non-migraine pain that is productive of severe economic inadaptability. The Veteran was next provided with an October 2020 VA Headaches examination. During this examination the Veteran again reported many symptoms regarding his headaches, and the examiner indicated that the Veteran experienced the characteristic prostrating attacks of migraines once every month. However, the examiner indicated that the Veteran did not have very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. Later in the opinion the examiner indicated that the Veteran has been prescribed new medication which has helped him with his headaches. The Veteran indicated in a November 2020 correspondence that his migraines have continued to worsen. Further, the Board notes that the only seeming improvement between the January 2020 and October 2020 VA examinations is the October 2020 examiner's report that the Veteran no longer experiences prolonged attacks productive of severe economic inadaptability. However, it is unclear if this improvement is attributed to the ameliorative effects of the medication mentioned by the examiner during his examination. Therefore, the Board finds that an addendum medical opinion is necessary. On remand, the Agency of Original Jurisdiction (AOJ) should obtain an addendum to the October 2020 VA Headaches examination wherein the examiner must attempt to explain whether, in the absence of medication, the Veteran's headaches would approximate the criteria for a higher rating under Diagnostic Code 8100. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a qualified examiner with sufficient expertise to opine on the severity of the Veteran's lumbar spine disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Specifically, using the Veteran's lay statements and the medical evidence of record, the examiner is asked to indicate whether the Veteran had ankylosis of the lumbar spine. If ankylosis was not diagnosed then the examiner must answer whether there is evidence demonstrating the functional equivalent of ankylosisi.e., functional loss consistent with that contemplated by ankylosis. For purposes of this opinion, the examiner should assume that the Veteran and his wife are reliable historians and must not ignore their competent reports of injuries, or of symptoms experienced. In this regard, the examiner must discuss and consider the competent lay statements of record. Additionally, after a review of the relevant records the examiner should provide a retrospective opinion to determine whether the Veteran's range of motion results from the May 2016 and August 2017 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and non-weight-bearing. Further, the examiner must opine on any additional functional loss from repeated use over time. To the examiner's best ability, the additional range of motion loss should be described in degrees. Additionally, the examiner should provide at which point in the Veteran's range of motion that pain started, or explain why such measurements were not provided. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. The RO should obtain and addendum opinion from the examiner who provided the October 2020 VA Headaches examination. If the October 2020 examiner is not available, another examiner of appropriate medical expertise should be requested to provide an addendum opinion. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The Veteran may be recalled for another examination if the examiner deems it necessary. The examiner must address the following: In their report on the severity of the Veteran's disability, the examiner must provide an opinion as to the likely severity of the Veteran's headaches absent the ameliorative effects of medications. Specifically, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headaches and BPPV symptoms would most closely approximate the following criteria if he were not taking medications for the condition: (a) For the Veteran's headaches disability: with characteristic prostrating attacks occurring on an average of once a month over last several months; or with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.