Citation Nr: 21072112 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 11-00 147A DATE: December 2, 2021 REMANDED Entitlement to an increased evaluation for bilateral pes planus, currently rated as 10 percent disabling before September 22, 2015 and as 30 percent disabling since then, is remanded. Entitlement to an increased evaluation for a service-connected lower back disorder, currently rated as 10 percent disabling before August 20, 2020, 20 percent disabling between August 20, 2020 and July 12, 2021, and as 40 percent disabling since then, is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disorders (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to August 2000. This case comes to the Board from decisions of the Agency of Original Jurisdiction (AOJ) issued in February 2009 and June 2010. In December 2013, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. This appeal has a long procedural history, including previous consideration by the Board in March 2014, November 2017, April 2020 and, most recently, in February 2021. At the time of the March 2014 decision and remand, this appeal included thirteen separate claims. Most of those claims have since been resolved, several of them in favor of the Veteran. The February 2021 decision and remand denied the Veteran's request for increased rating for residuals of a right ankle fracture and remanded the remaining issues for further development. Only the increased rating claims for disabilities of the lower back and feet as well as the request for a TDIU rating remain on appeal. In August 2021, the AOJ increased the rating assigned to the Veteran's lower back disability from 20 percent to 40 percent, effective July 12, 2021. While this decision is a favorable one, the Veteran has not expressed satisfaction with the amount of the increase and the regulations potentially authorize even higher ratings. Thus, the increased rating claim remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Although the Board regrets the need for additional delay, for the following reasons, the issues in this case are remanded for further development. Increased Rating for Pes Planus In support of his claim, the Veteran submitted a foot conditions disability benefits questionnaire, apparently prepared by a chiropractor in February 2017. This questionnaire describes symptoms which, if accurate, would satisfy the criteria for a 50 percent rating under 38 C.F.R. § 4.71a, DC 5276. But the next scheduled VA foot conditions examination report, dated May 2019, indicated that many of the symptoms and also several additional foot disabilities (hallux valgus, hallux rigidus, metatarsalgia and Morton's disease) identified in the chiropractor's questionnaire were not present. To help resolve this conflict in the evidence, the Board's April 2020 remand orders required a clarifying opinion from "the physician who provided the May 2019 foot conditions disability benefits questionnaire . . . If the May 2019 examiner is unavailable for any reason, the AOJ should obtain the requested opinion from another qualified person." In April 2020, the AOJ obtained a report, which indicates that, in the author's opinion, the symptoms and diagnoses identified in the February 2017 questionnaire were acute and transient. Unfortunately, this report was not prepared by the May 2019 VA examiner and there was no record indicating that he was unavailable. To enforce compliance with its prior orders, the Board remanded the increased rating for a disability of the feet to obtain a new opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2021, the AOJ obtained a report from the May 2019 examiner. The report consists of three parts, labelled by the letters A, B, and C. Part A repeats language which the same examiner included in his May 2019 report to express disagreement with the February 2017 chiropractor's questionnaire, indicating, "There is no documentation on physical examination performed. Evidence which is simply recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute 'competent medical evidence' that a condition exist[s] or that the narrative is certain." This statement is similar to language from decisions of the United States Court of Appeals for Veterans Claims (Court) concerning the different kinds of information commonly found in medical records. See e.g. LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ("a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional."). As the Board explained in its April 2020 remand, the May 2019 examiner is unconvincing when he suggests that the chiropractor's questionnaire belongs in this category. In form, the chiropractor's questionnaire is similar to the VA medical examination reports ordinarily relied on by adjudicators in most cases. Moreover, the chiropractor's marking of boxes next to pre-printed text indicating the presence or absence of certain symptoms or diagnoses for example, hallux rigidus is best understood as a form of "medical comment" which makes it unreasonable to treat the questionnaire as simply a transcription of the Veteran's own statements. If this were the only problem with the March 2021 addendum report, then it might be possible to decide the increased rating claim for pes planus based on the other information in the report while setting aside and assigning no probative weight to Part A. There is nothing clearly wrong with Part B, which endorses the April 2020 opinion that the symptoms noted in the chiropractor's report were likely acute and transitory. But Part C of the report is confusing and suggests that the examiner's opinion may have relied on an inaccurate factual premise. Part C begins by referring to the May 2019 examination. The examiner wrote that, "veteran [sic] narrative of symptoms is not consistent with the diagnosis claimed not with the examination AT THAT TIME." (emphasis in original). The examiner then quotes the diagnosis section of his May 2019 report indicating that the examination was "inconsistent with plantar fasciitis." One problem with this language is that it is unclear to the reader what the examiner meant when he referred to the Veteran's "narrative of [his] symptoms", which makes it impossible to know which of his claimed symptoms, if any, conflicted with the May 2019 examination findings. Of course, it is appropriate for the examiner to note that his findings were inconsistent with plantar fasciitis. But there is medical evidence indicating that the Veteran was diagnosed with plantar fasciitis both before and after May 2019. Under these circumstances, an adequate opinion would explain whether the examiner disagreed with those diagnoses and, if so, would explain the reasons for that disagreement. If the Veteran's plantar fasciitis is a disability that occurs only intermittently perhaps present at certain times but absent in May 2019 then an adequate report should make that clear. Under these circumstances, the Board will remand the increased rating claim for service-connected disabilities of the feet for a clarifying opinion. To avoid the possibility of further confusion, the AOJ should schedule a new in-person foot conditions examination. Increased Rating for the Lower Back In February 2021, the Board instructed the AOJ to arrange an examination of the Veteran's lower back. These instructions required the post-remand examiner to record the results of range of motion testing after the use of all the testing methods required by 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158, 170 (2016). In July 2021, the AOJ obtained the requested examination report, which included a set of range of motion test results of the thoracolumbar spine in active motion. Section III of the report indicates that the results of testing in passive motion were the same as the initial set of results. Unfortunately, the report did not indicate the degrees of range of motion in weight-bearing or in nonweight-bearing. The examiner did not mark boxes next to pre-printed text which, if marked, would indicate that pain was present in weight-bearing and in nonweight-bearing. Because 38 C.F.R. § 4.59 requires testing "for pain" when the relevant joint is tested using each of these methods, the Board has considered the possibility that the July 2021 report is adequate on the theory that, because the Veteran apparently did not experience pain in weight-bearing or in nonweight-bearing, precise range of motion test results, in degrees, under these conditions became unnecessary. Unfortunately, such a conclusion would be inconsistent with other information in the report. According to the examiner, the Veteran experienced pain during all the relevant movements (forward flexion, extension, right and left lateral flexion, and right and left lateral rotation) during both active and passive motion. The terms active and passive and likewise, the terms weight-bearing and non-weightbearing are, respectively, mutually exclusive. But one of the first set of testing methods (active or passive) can clearly be combined with one of the latter (weight-bearing or nonweight-bearing). For example, one can test range of motion when the spine is in both active motion and in weight-bearing. During the initial tests, the measurements recorded by the examiner, apparently to indicate range of motion, in degrees, during active motion, must necessarily have been either when the spine was in weight-bearing or in nonweight-bearing because middle position is impossible i.e., one cannot measure active range of motion when the joint neither weight-bearing nor nonweight-bearing. And the examiner indicated that the Veteran was experiencing pain during those movements. Thus, there is a contradiction in the July 2021 range of motion measurements. If, as the report suggests, the Veteran experienced pain during both active and passive motion, it follows that he must also have experienced pain in either weight-bearing or in nonweight-bearing or possibly both. But the report indicates that he experienced no pain when tested in both of these methods. Until recently, an examiner's failure to comply with 38 C.F.R. § 4.59 was considered harmless error when, as in this case, the Veteran has been awarded the highest rating authorized for the relevant joint based on limited motion and the criteria for a higher rating require ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). But this understanding of the law is inconsistent with the Court's recent decision in Chavis v. McDonough, 34 Vet. App. 1 (decided April 16, 2021). Chavis suggests that the Veteran in this case could potentially be eligible for a rating higher than 40 percent if pain on movement causes him to experience the "functional equivalent" of ankylosis. Id. Based on this understanding of 38 C.F.R. § 4.59, the Board cannot find that the July 2021 examiner's failure to provide all of the requested range of motion measurements was harmless error. For these reasons, the July 2021 examination report is inadequate and, to remedy this problem, the Board must remand the claim for a new examination. TDIU The appeal of the denial of a TDIU rating is inextricably intertwined with the increased rating claims that the Board is remanding because, if resolved in his favor, higher ratings could potentially affect whether the Veteran is eligible to receive a TDIU rating. The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). The Board will remand the TDIU appeal pending the adjudication of the intertwined issues. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran's VA treatment since July 2021. 2. Schedule the Veteran for a new examination to assess the current severity of his service-connected pes planus with plantar fasciitis. If he is available, this examination should be performed by the physician who conducted the May 2019 examination and who prepared the July 2021 medical opinion. If the May 2019 examiner is not available, the AOJ should document this for the claims file and should schedule the requested foot conditions examination with another qualified person. In addition to the information requested in the standard VA foot conditions disability benefits questionnaire, the examiner should prepare a supplemental report clarifying the July 2021 addendum opinion. In Part C of that opinion, the examiner referred to the May 2019 report and then wrote that, "veteran [sic] narrative of symptoms is not consistent with the diagnosis claimed not with the examination AT THAT TIME." The examiner should clarify which specific symptoms, apparently described in the "narrative of symptoms", were not consistent with the examination findings. Part C of the July 2021 opinion also indicates that, during the May 2019 examination, the examiner's findings were inconsistent with a diagnosis of plantar fasciitis. The examiner is advised that the Veteran has been diagnosed with plantar fasciitis on multiple occasions both before and after May 2019. For example, the September 2015 VA foot conditions examination report indicates such a diagnosis and so does a VA podiatry note, dated March 2020. Does the examiner believe these diagnoses were mistaken? Does the Veteran only exhibit symptoms of plantar fasciitis intermittently i.e., the condition is sometimes present and sometimes asymptomatic? Or does some other explanation account for this conflict in the evidence? The examiner should provide a complete rationale explaining the reasons for all of his or her opinions. 3. Schedule a VA examination to ascertain the current severity of the Veteran's service-connected thoracolumbar spine disability. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner who completes the questionnaire should determine the effective range of motion in the Veteran's thoracolumbar spine and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording SEPARATE SETS OF RANGE OF MOTION TEST RESULTS, IN DEGREES, FOR BOTH ACTIVE AND PASSIVE MOTION AND IN BOTH WEIGHT- BEARING AND NONWEIGHT-BEARING. If the examiner believes that testing using one or more of these methods is unsafe or impractical, he or she should clearly explain the medical reasons for that conclusion. The examiner's report should also describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If it is impossible to make any of these findings, please provide an explanation. To comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner should describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability of the lumbosacral spine during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or if repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and indicate the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. During his or her interview with the Veteran, the examiner should ask the Veteran whether (and, if so, how frequently) symptoms of weakened movement, excess fatigability, incoordination, and/or pain on movement have resulted in the functional equivalent of ankylosis since February 2009. The examiner's report should summarize the Veteran's answer to this question. 4. The AOJ must ensure that the examination reports and opinions requested comply with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.