Citation Nr: 21070077 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-53 524 DATE: November 22, 2021 REMANDED Entitlement to a compensable disability rating for arthritis of the toes in the right foot is denied. Entitlement to service connection for left hip degenerative arthritis, to include as secondary to a lumbar spine condition is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from August 1980 to October 1989. In December 2019, the Veteran provided testimony at a hearing before a Veterans Law Judge (VLJ) who is no longer with the Board of Veterans' Appeals (Board). In July 2021, the Veteran was provided with an option to testify at an additional hearing. The Veteran declined the opportunity. The Board previously remanded these issues in May 2020 and March 2021. The most recent remand included instructions to obtain relevant addendum medical opinions. The Board found that the Veteran's claim for TDIU was intertwined with the other issues on appeal and that claim was remanded also. The case returns to the Board for adjudication. The May 2020 and March 2021 Board issued remands are incorporated herein by reference. Regretfully, the Board finds that an additional remand is necessary to obtain adequate evidence for adjudication of the claims on appeal. Compensable Rating - Arthritis of the Toes of the Right Foot The Veteran contends that his right toe arthritis condition has worsened and warrants a compensable rating. The Board finds that additional development is necessary in order to adjudicate this claim. Throughout the appeal period, the Veteran's right toe arthritis has been assigned a non-compensable rating under diagnostic code 5010. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. When the Board is asked to apply rating criteria that do not provide objective standards of measurement, an adequate statement of reasons and bases must include a description of the factors that the Board considered in determining the appropriate rating. See Cantrell v. Shulkin, 28 Vet. App. 382, 390-91 (2017). In other words, the Board is obligated to disclose the standard under which it is operating, which means it must explain what the rating criteria mean and why it determined that they were not met. See Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018). Thus, when employing undefined rating criteria and assigning less than the maximum schedular rating, the Board should state what symptoms would have warranted a higher rating had they been present. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree." See www.merriam-webster.com/dictionary/severe. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 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); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis, but 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Correia v. McDonald, 28 Vet. App. 158 (2016) stipulates that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. VA medical records indicate that in March 2016, the Veteran sought treatment for a worsening of right foot symptoms, including burning, painful nerves. He was prescribed orthoses, and in October 2016, he reported improvement of his symptoms. At the December 2019 hearing, the Veteran testified that his right toe arthritis had worsened, including symptoms of burning numbness and pain causing incapacitating episodes. On VA examination in September 2020, the Veteran reported pain on the bottom of his feet bilaterally that radiated to the ankle and calf, with constant numbness, and pain with walking. The examiner noted additional foot conditions of bilateral hammer toes, bilateral hallux valgus, and bilateral pes planus, that were unrelated to service-connected arthritis. The examiner remarked that the Veteran's right foot symptoms were "moderately severe." Pursuant to the March 2021 Board remand, a medical opinion was obtained in which the examiner determined that the additional foot issues were not related to right toe arthritis. While explaining that the foot conditions were separate from arthritis, the opinion lacked clarification of symptoms attributable to the additional separate foot conditions and Veteran's service-connected arthritis. Without such clarification, the current nature and severity of the Veteran's arthritis of the toes of the right foot cannot be determined for adjudicative purposes. Throughout the appeal period, the Veteran's right toe arthritis has been assigned a non-compensable rating under diagnostic code 5010. While the Veteran's foot condition was described as "moderately severe" on examination, it is unclear whether his foot symptoms can be attributed to his service-connected arthritis. Additionally, the Veteran's arthritis of the right toes has not been evaluated under the criteria of Correia and Sharp. In order to determine the current nature and severity of the Veteran's arthritis of the right toes, a remand is necessary. Service Connection for Left Hip Condition The Veteran contends that his current diagnosed left hip strain and arthritis is related to an injury sustained during active service. The Board finds that adequate evidence to adjudicate this claim has not been obtained in the claims file. The March 2021 Board remand directed that an additional comprehensive opinion be obtained regarding the etiology of the Veteran's left hip condition. According to the Supplemental Statement of the Case, an additional opinion was obtained in March 2021. However, no such opinion has been incorporated into the claims file for Board review. As such, a remand is necessary to incorporate any outstanding medical records. TDIU The appeal of the issue of entitlement to a TDIU is once again before the Board for further appellate review and is once again remanded to the agency of original jurisdiction as inextricably intertwined with the remaining issues on appeal. VA will notify the Veteran if further action is required. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding personnel and VA medical records for this Veteran, to include any private medical records identified by the Veteran. Obtain any necessary authorizations from the Veteran for outstanding relevant private records. Specifically, obtain and incorporate a March 2021 medical opinion relating to the Veteran's claimed left hip condition. All attempts to obtain this information shall be documented in the claims file. 2. Then, accord the Veteran an additional examination to determine the current nature and severity of his arthritis of the right toes, to include being evaluated under the criteria of Correia and Sharp. Symptoms must be determined independent of the non-service-connected foot conditions. If the symptoms cannot be separately evaluated, the examiner must explain why they cannot be separately measured. The examiner is asked to ascertain how far back in time the current symptoms of the Veteran's arthritis of the right toes can be determined. A complete medical rationale for all opinions expressed must be provided. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.