Citation Nr: 21006938 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-35 263 DATE: February 8, 2021 ORDER Entitlement to service connection for right 5th hammer toe is granted. Entitlement to a rating in excess of 10 percent for residuals of a right 5th toe fracture is denied. Entitlement to a rating in excess of 10 percent for right knee disability is denied. Entitlement to a rating in excess of 10 percent for left knee disability is denied. Entitlement to a compensable rating for bilateral great toenail, post-operative with anonychia, is denied. Prior to April 28, 2016, entitlement to a rating in excess of 60 percent for chronic obstructive pulmonary disease (COPD) is denied. Effective April 28, 2016, entitlement to a 100 percent rating for COPD is granted subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to a total rating based on individual unemployability (TDIU) is granted subject to controlling regulations applicable to the payment of monetary benefits. REMANDED Entitlement to service connection for right 2nd and 3rd hammer toes, to include on a secondary basis, is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. The Veteran’s right 5th hammer toe has been shown to be etiologically related to her active service. 2. Throughout the period on appeal, the Veteran’s right 5th toe fracture residuals more nearly approximated a moderate foot injury. 3. Throughout the period on appeal, the Veteran’s bilateral knee disability was manifested by painful motion. The right knee disability was not manifested by ankylosis, recurrent subluxation or instability, a meniscal condition, flexion limited to 60 degrees or less, extension limited to 5 degrees or less, impairment of the tibia and fibula or genu recurvatum. 4. Throughout the appeal period, the Veteran’s bilateral ingrown toenail disability has involved at most less than 5 percent of the total skin surface affected by dermatological symptoms (zero percent of exposed skin surface), without recent treatment modalities, and without attendant disability involving the remainder of the feet. 5. Prior to April 28, 2016, the Veteran’s COPD was not manifested by pulmonary function testing (PFT) results showing post-bronchodilator FEV-1, FEV-1/FVC or DLCO results less than 40 percent, cor pulmonale, right ventricular hypertrophy or pulmonary hypertension, a maximum oxygen consumption of 20 ml/kg/min or less, or required outpatient oxygen therapy or outpatient oxygen therapy. 6. Effective April 28, 2016, the Veteran’s COPD was manifested by PFT results showing FEV-1 of 37 percent predicted. 7. The Veteran is service connected for the following disabilities: COPD rated 60 percent disabling effective April 2013, and 100 percent disabling effective April 2016; depressive disorder rated 70 percent disabling effective June 2014; bronchitis rated 10 percent disabling effective July 1994, noncompensable effective June 1997, and 30 percent disabling from June 2005 to April 2013; painful scars (bilateral great toe, left 2nd toe and right 5th toe) rated 20 percent disabling effective October 2019; right 5th toe fracture residuals rated 10 percent disabling effective July 1994; lumbar spine disability rated 20 percent disabling effective July 1994, noncompensable effective June 1997, and 10 percent disabling effective July 2004; left knee disability rated 10 percent disabling effective July 1994, noncompensable effective June 1997, and 10 percent disabling effective January 2005; right knee disability rated 10 percent disabling effective July 1994, noncompensable effective June 1997, and 10 percent disabling effective January 2005; left hallux valgus rated noncompensable effective May 15, 2007, 100 percent disabling effective May 23, 2007, 10 percent disabling effective August 2007, 100 percent disabling effective December 2009, and 10 percent disabling effective March 2010; right hallux valgus rated 100 percent disabling effective May 2007, 10 percent disabling effective August 2007, 100 percent disabling effective March 2010, and 10 percent disabling effective June 2010; and, right 4th toe hammer toe rated 100 percent disabling effective August 2013, and noncompensable effective October 2013. The Veteran is also service connected for the following disabilities rated noncompensable: hemorrhoids; bilateral ingrown big toenail; status post left bunionectomy scar; status post right bunionectomy scar; left 2nd hammer toe, right 4th toe scar; and, left 2nd toe scar. Additionally, the Veteran is currently service connected for right 5th hammer toe, not yet rated. 8. The Veteran is unable to secure and follow substantially gainful employment as a result of her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right 5th hammer toe have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for a rating in excess of 10 percent disabling for right 5th toe fracture residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.72, DCs 5276-5284. 3. The criteria for a rating in excess of 10 percent disabling for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, DCs 5003, 5010, 5256-5263. 4. The criteria for a rating in excess of 10 percent disabling for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, DCs 5003, 5010, 5256-5263. 5. The criteria for a compensable evaluation for bilateral ingrown toenails have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.118, DC 7806, 7813, 7824. 6. Prior to April 28, 2016, the criteria for a rating in excess of 60 percent disabling for COPD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.97, DC 6604. 7. Effective April 28, 2016, the criteria for a 100 percent rating for COPD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.97, DC 6604. 8. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to June 1993. This matter is before the Board of Veterans’ Appeals (Board) on appeal from February 2014 (service connection – hammer toes; increased rating – right 5th toe fracture residuals, bilateral knee, bilateral ingrown big toenail, COPD) and September 2014 (service connection - headaches) rating decisions by a Department of Veterans Affairs Regional Office (RO). With regard to the service connection claim for bilateral hammer toes, that claim arose from an April 2013 increased rating claim for bilateral foot condition. In development of that claim, the Veteran underwent a VA foot examination in November 2013 which revealed diagnoses for hammer toes affecting the left 2nd toe and right 2nd, 3rd, 4th and 5th toes. Thereafter, a February 2014 rating decision denied entitlement to service connection for “bilateral hammer toes.” In a subsequent January 2014 VA examination report, the examiner provided a negative nexus opinion for the Veteran’s diagnosed hammer toes (i.e. left 2nd toe and right 2nd, 3rd, 4th and 5th toes). In October 2018, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain VA examinations with regard to the service connection claims for headache condition and hammer toes. With regard to hammer toes, the Board found the January 2014 VA examination report inadequate because the examiner did not address the theory of aggravation, and did not indicate what medical conditions caused the Veteran’s hammer toes. The Board further noted that the Veteran had undergone surgery on her left 2nd hammer toe in September 2017. In addition, the Board instructed the AOJ to obtain VA examinations with regard to the increased rating claims on appeal and to issue a statement of the case (SOC) with regard to an earlier effective date claim for an increased 60 percent rating for COPD. The Board notes that the requested SOC was issued in December 2019 and a review of the claims file shows the Veteran did not perfect her appeal to the Board with regard to that claim. Accordingly, the earlier effective date claim is no longer before the Board. The Board additionally notes that the requested VA examinations have been obtained and associated with the claims file. Accordingly, with regard to the claims decided below, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, a February 2020 rating decision granted an increased rating for COPD of 100 percent, effective October 3, 2019. Accordingly, effective October 3, 2019, the Veteran has been in receipt of the highest rating available for that condition. Therefore, the issue remaining on appeal is entitlement to a rating in excess of 60 percent prior to October 3, 2019. The Board further notes that the February 2020 rating decision granted entitlement to service connection for painful scars affecting the bilateral great toes and assigned a 20 percent evaluation effective October 22, 2019, and special monthly compensation. In addition, a May 2020 rating decision granted service connection for hammer toes, left 2nd toe and right 4th toe. Accordingly, as the AOJ granted the benefits sought on appeal, those issues are no longer before the Board. Shoen v. Brown, 6 Vet. App. 456 (1994). With regard to hammer toes affecting the Veteran’s left foot, she has only been diagnosed with left 2nd hammer toe, and the VA examination reports have only addressed that toe. However, the Board notes that a May 2020 supplemental SOC denied entitlement to service connection for left 3rd, 4th and 5th hammer toes. The Board finds the inclusion of these toes to be in error as the VA examination reports from which the claim arose only identified and addressed the Veteran’s diagnosed left 2nd hammer toe. Subsequent VA medical records and examination reports have additionally only identified a left 2nd hammer toe. Accordingly, the Board finds that a claim for left 3rd, 4th and 5th hammer toes has not been raised by the record, and is not currently before the Board. Lastly, as noted in the prior October 2018 Board decision, the Veteran had raised the issue of entitlement to a TDIU during the pendency of the appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Right 5th Hammer Toe The Veteran seeks entitlement to service connection for right 5th hammer toe, to include on a secondary basis. The evidence of record includes the Veteran’s service treatment records (STRs). Those records show that during an October 1990 periodic examination report, the Veteran reported having foot trouble. An April 1993 record noted a right 5th hammer toe. The Veteran also reported having foot trouble during her April 1993 separation examination. Post-service medical records include a September 1993 right 5th toe operation report noting pre and postoperative diagnosis for right 5th hammer digit syndrome. See VA Medical Records Received August 1993. The Veteran underwent an August 1994 general VA examination. The Veteran reported having had an extra toe surgically removed off her right 5th toe. She also reported the surgical removal of bunions. The examiner noted that the Veteran’s feet were within normal limits with no surgical scars seen or any visible bunions. An X-ray study revealed mild degenerative joint disease (DJD) of the proximal phalanx of the right 5th toe. The Veteran underwent a VA foot examination in February 2010. The examiner stated that no hammer toes were found upon examination. In July 2013, a VA medical record shows the Veteran reported pain to her right 2nd, 3rd, 4th and 5th digits for the past year. A July 2013 X-ray study revealed hammer toes affecting the right 2nd, 3rd, 4th and 5th toes. See VA Medical Records Received June 2014. The Veteran underwent another VA foot examination in November 2013. The examiner noted diagnoses for bilateral hammer toes affecting the right 2nd, 3rd, 4th and 5th toes, and left 2nd toe. In a subsequent January 2014 VA examination report, the examiner opined that the Veteran’s diagnosed hammer toes were “less likely than not (less than 50% probability) proximately due to or the result of the her service-connected bilateral hallux valgus, bilateral ingrown toenails or fractured 5th toe. In support of this opinion, the examiner noted that medical literature did not reveal that hallux valgus, ingrown toenails, or a fracture unrelated toe caused hammer toes. Instead, the examiner noted that hammer toes were a deformity of the proximal interphalangeal joint caused by either footwear or secondary medical conditions. In this regard, hammer toes were noted as often found in conjunction with hallux valgus, but that hallux valgus did not cause hammer toe deformities. Additionally, the examiner noted that a review of the Veteran’s military medical records did not reveal that the current bilateral hammer toes were etiologically related to in-service footwear as the separation examination did not note the presence of hammer toes or hammer toe residuals. The Veteran underwent another VA foot examination in October 2019. The examiner noted diagnoses for bilateral hallux valgus status post bunionectomy, fracture of right 5th toe, bilateral hallux rigidus, and hammer toes affecting the 2nd, 3rd, 4th and 5th right toes, and 2nd left toe. The examiner stated that based on the Veteran’s description of her MOS (military occupational specialty) duties, that her diagnosed bilateral foot conditions “may have been directly caused by these tasks.” However, the examiner further noted that a medical opinion as to direct service connection was not requested and, therefore, no such medical opinion was rendered. With regard to the Veteran’s diagnosed hammer toes, the examiner opined that it was “less likely than not (less than 50 percent probability)” that the conditions were proximately due to or the result of any service-connected condition. In support of this opinion, the examiner noted that the Veteran’s hammer toes were not part of the expected course of disease progression of any of the current service-connected foot conditions. The examiner further noted that the opinion was based on the time of onset of the conditions and the Veteran’s description of her occupational tasks during service. In an April 2020 VA examination report, the examiner opined that it was “at least as likely as not (50% or greater probability)” that the Veteran’s right 5th hammer toe was etiologically related to service. In support of this opinion, the examiner noted STRs documenting a painful right 5th hammer during service, and a September 1993 VA medical record noting a pre and post operational diagnosis for right 5th digit hammer toe. Accordingly, the examiner found that the STRs documented a right 5th hammer toe during service. Additionally, the examiner noted that hammer toes might recur due to the ongoing factors of flexor and extensor tendon imbalance. As noted above, the Veteran is already service connected for hammer toes affecting the right 4th toe and left 2nd toe. With regard to the diagnosed right 5th hammer toe, after a review of the evidence of record, the Board finds that entitlement to service connection is warranted. In this regard, the Board finds the April 2020 VA examination report the most probative evidence of record. The examiner considered the medical records including the Veteran’s STRs. Based on STRs noting a right 5th hammer toe condition and well as a VA medical record dated shortly after separation from service also noting a right 5th hammer digit condition, the examiner provided a positive nexus opinion etiologically relating the condition to service. Importantly, there is no medical evidence to the contrary. Thus, the Board finds that the Veteran’s right 5th hammer toe condition has been shown to be etiologically related to her service. The claim is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). 2. Right 5th Toe The Veteran filed an increased rating claim in April 2013. The evidence of record includes a July 2013 VA medical record showing the Veteran reported pain to her right 2nd, 3rd, 4th and 5th digits for approximately one year. A September 2013 VA medical record noted mild tenderness to palpation to the right 5th toe. See VA Medical Records Received June 2014. The Veteran underwent a VA foot examination in November 2013. The examiner noted diagnoses for metatarsalgia, hammer toes and hallux valgus. The examiner also noted the Veteran was status post osteotomy bilateral hammer toes deformity and osteoarthritis of the bilateral 1st PTP joint. The Veteran denied any foot pain, flare-ups or any functional loss. The examiner noted mild or moderate symptoms associated with hallux valgus. The examiner also noted right foot pain, including pain on movement and pain on weight-bearing. The Veteran’s right foot was also found to have less movement than normal, deformity and was found to cause interference with standing. The examiner further noted functional loss due to impairment of physical activities including running, jumping, and walking long distances. The Veteran last underwent a VA foot examination in October 2019. The examiner noted diagnoses for bilateral hallux valgus status post bunionectomy; fracture of right 5th toe; bilateral hallux rigidus; and hammer toes affecting the 2nd, 3rd, 4th and 5th right toes, and 2nd left toe. The Veteran reported daily pain along the bottom of her feet and severe sensitivity involving all toes. In addition, she reported having received special built-up shoes. She denied having flare-ups. She did report that on cold days, she would lay around because it was extremely hard to walk upstairs. Symptoms related to the Veteran’s hallux valgus and hallux rigidus was noted as mild to moderate. The examiner noted pain upon examination which contributed to functional loss including pain on weight-bearing, pain on non-weight-bearing, swelling, deformity, instability of station and interference with standing. Pain, weakness, fatigability or incoordination were not found to significantly limit the Veteran’s functional ability when the foot was used repeatedly over a period of time. The examiner noted that the abnormal signs, symptoms and functional impact were due to a combination of the Veteran’s various service-connected bilateral foot conditions. With regard to the severity of the Veteran’s service-connected right 5th toe, the examiner noted that it had remained the same and caused moderate impairment. The Veteran’s right 5th toe disability has been rated pursuant to 38 C.F.R. § 4.71a, DC 5284 (other foot injuries). Under DC 5284, a 10 percent rating is warranted for moderate symptoms. A 20 percent rating is warranted for moderately severe symptoms. A 30 percent rating is warranted for severe symptoms. 38 C.F.R. § 4.71a, DC 5284. After a review of the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted. Specifically, the Board finds that the medical evidence fails to show residuals of the Veteran’s right fifth toe fracture that more nearly approximate a moderately severe or a severe condition. In this regard, the Board notes that throughout the period on appeal, the Veteran’s right 5th toe has been manifested by daily pain, noted as mild in September 2013. Additionally, the Board finds most probative the October 2019 VA examination report which evaluated symptoms specifically related to the Veteran’s right 5th toe, and found that the condition resulted in moderate impairment. The Board finds this examination report most probative because the Veteran is service connected for numerous right foot conditions affecting. Therefore, providing examination results pertaining only to the right 5th toe fracture residuals is particularly helpful in avoiding duplicative or overlapping symptomatology. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Board further finds it instructive that during both the November 2013 and October 2019 VA examinations, the Veteran denied having any flare-ups. Therefore, absent evidence showing a right 5th toe condition manifested by moderately severe or severe symptomatology, the Board concludes that a rating in excess of 10 percent is not warranted. The Board has considered other ratings pertaining to the foot. In this regard, DCs 5276 (flatfoot), 5277 (weak foot), 5278 (claw foot), and 5283 (malunion, nonunion metatarsal bones) are not applicable as the right 5th toe residuals are not manifested by those conditions. The Veteran is also service connected for hallux valgus (DC 5280 which also encompasses ratings for hallux rigidus (See DC 5281)), and hammer toes (5282) (hammer toe). Lastly, the highest rating available under DC 5279 (metatarsalgia) is 10 percent. Therefore, rating the Veteran’s right 5th toe residuals under DC 5279 does not provide her with a more beneficial outcome. Accordingly, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right 5th toe fracture residuals. The claim is denied. 38 U.S.C. § 5107(b), 5110; 38 C.F.R. §§ 3.400, 4.7, 4.30, 4.72, DCs 5276-5284; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Right Knee Disability 4. Left Knee Disability The Veteran filed an increased rating claim in April 2013. The Veteran’s bilateral knee disability has been rated pursuant to 38 C.F.R. § 4.71a, DC 5299-5024. Accordingly, the bilateral knee disability has been rated by analogy based on painful or limited motion of a major joint. The evidence of record includes a November 2013 VA knee examination. The examiner noted a diagnosis for bilateral knee strain, bilateral patellofemoral pain syndrome and bilateral chondromalacia. The Veteran reported symptoms of stiffness, swelling, tenderness and extreme pain requiring daily medication. The Veteran also reported flare-ups resulting in right knee pain 4 to 5 times per day rated as a 4 to 8 on a scale to 10, and left knee pain 2 to 3 times per day rated as a 3 to 7 on a scale to 10. She denied that her knees resulted in functional impairment. ROM testing revealed forward flexion to 140 degrees and extension to 0 degrees bilaterally. Repetitive use testing did not result in further loss of motion. Pain was noted during ROM testing that contributed to functional loss or additional limitation of ROM, however, the examiner stated that estimating additional loss of ROM was not feasible. Muscle strength testing was normal. The bilateral knee disability was not found manifested by ankylosis. The examiner noted no history of recurrent subluxation, lateral instability or recurrent effusion. Joint stability testing was normal. The examiner further noted that the Veteran’s bilateral knee disability had not been manifested by a meniscal condition, recurrent patellar dislocation, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. An April 2017 VA medical record noted knee pain. Bilateral knee ROM was noted as within full limits throughout. The Veteran was able to transition from sitting to standing and ambulate over 400 feet on a level surface without assistance. A December 2018 VA medical record shows the Veteran complained of bilateral knee pain located under her kneecaps. Pain was described as aching and rated a 7 on a scale to 10. A physical examination revealed full ROM for both knees with mild bilateral medial joint line tenderness. No effusions, significant gait abnormality or laxity were found. See VA Medical Records Received December 2019. In June 2019, a VA medical record shows the Veteran was seen related to an evaluation for possible corticosteroid knee injections. An examination of the bilateral knee revealed full ROM, with no effusion or laxity. A September 2019 VA medical record noted mild swelling associated with the right knee and no left knee swelling. Bilateral medial joint line tenderness as found. ROM testing revealed flexion to 150 degrees and extension to 0 degrees. See VA Medical Records Received September 2019. The Veteran last underwent a VA knee examination in October 2019. The examiner noted diagnoses for bilateral degenerative arthritis and bilateral retropatellar pain syndrome. In this regard, the examiner noted that the prior diagnosis for bilateral chondromalacia patellae was in error as such diagnosis could not be made without radiographic or endoscopic evidence. The Veteran reported daily bilateral knee pain which could be sharp or throbbing and located on the anterior knee. She also reported frequent swelling and giving out. In addition, she reported flare-ups which caused her knees to lock up to the point where she would have to sit down. In addition, she reported functional impairment making it more difficult for her to go grocery shopping. ROM testing revealed bilateral flexion to 140 degrees and extension to 0 degrees. Pain was noted during ROM testing, but was not found to result in or cause functional loss. The Veteran was able to perform repetitive use testing with no further loss of motion. In addition, the examiner noted that the Veteran was being examined during a flare-up and that pain caused by flare-ups caused significantly limited functional ability. In this regard, the examiner noted that flare-ups further reduced ROM to 100 degrees flexion with no change in extension. The Veteran’s bilateral knee condition was not manifested by ankylosis. Muscle strength testing was normal. The examiner noted no history of recurrent subluxation, lateral instability or recurrent effusion. Joint stability testing was normal. The examiner further noted that the bilateral knee condition was not manifested by a meniscal condition, recurrent patellar dislocation, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. After a review of the evidence of record, the Board finds that entitlement to a rating in excess of 10 percent disabling for either knee is not warranted. Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (cartilage, semilunar, dislocated with frequent episodes of “locking” pain, and effusion into the joint), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). Initially, the Board notes that the Veteran’s bilateral knee disability has not been found manifested by ankylosis, impairment of the tibia and fibula or genu recurvatum at any time during the period on appeal. Accordingly. DCs 5256, 5259, 5262 and 5263 are not for application. Turning to DC 5257 and 5258, the Board finds that the Veteran’s bilateral knee disability has not been manifested by recurrent subluxation or lateral instability or a meniscal condition with frequent episodes of locking pain. In this regard, the Board recognizes the Veteran’s reports of giving way and locking pain during her October 2019 VA examination. While the Veteran is competent to report observed symptoms such as giving way or locking pain, she is not competent to provide a medical finding as to joint instability or a meniscal condition as such is a complicated medical issue. 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372 (2007). In any event, the Board again finds the cumulative VA examination reports and medical records, all of which found a bilateral knee condition not manifested by instability or a meniscal condition, the most probative evidence of record. With regard to the VA examinations, those examinations specifically conducted diagnostic testing to determine whether the Veteran’s bilateral knee was manifested by instability or a meniscal condition. All such diagnostic tests were consistently negative. The Board concludes that if the Veteran had subluxation or instability that more nearly approximated the criteria for a compensable rating, such would have been shown upon objective testing at some point during the appeal. Therefore, with regard to instability and a meniscal condition, the Board finds the VA examinations the most probative evidence of record, and a separate rating based on those reported symptoms is not warranted. Under DC 5260, limitation of flexion to 60 degrees warrants a non-compensable evaluation, and limitation of flexion to 45 degrees warrants a 10 percent evaluation. Limitation of flexion to 30 degrees warrants a 20 percent evaluation, and limitation of flexion to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a. Additionally, DC 5261 provides the rating criteria for limitation of extension of the leg. Under this diagnostic code, extension that is limited to 5 degrees is noncompensable; extension that is limited to 10 degrees warrants a 10 percent disability rating; and extension limited to 15 degrees warrants a 20 percent disability rating. Extension limited to 20 degrees warrants a 30 percent disability rating; extension limited to 30 degrees warrants a 40 percent disability rating; and extension limited to 45 degrees warrants a 50 percent disability rating. 38 C.F.R. § 4.71a. A review of the evidence of record shows that during the period on appeal, the Veteran’s ROM has been found to be, at worst, limited to flexion to 100 degrees. See October 2019 VA Examination Report. Extension has not been found limited to worse than 0 degrees at any point during the period on appeal. Accordingly, a compensable rating based solely on limitation of motion is not warranted at any point during the period on appeal. Here, the Veteran’s bilateral knee disability has been assigned a compensable rating based on painful motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). As limitation of flexion has been shown to be, at worst, 100 degrees, which does not warrant a compensable evaluation, the 10 percent ratings have been assigned based on painful motion. The criteria for a higher rating or separate ratings have not been met. 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5260. In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent disabling for either the right or left knee disability. The claims are denied. 38 U.S.C. § 5107(b), 5110; 38 C.F.R. §§ 4.7, 4.71a, DCs 5003, 5010, 5256-5263; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Right Great Toenail 6. Left Great Toenail The Veteran filed an increased rating claim in April 2013. Initially, the Board notes that in the October 2018 Board Decision, it was noted that DC 7804 for painful scars were applicable to the Veteran’s bilateral great toenail condition. Thereafter, a February 2020 rating decision granted service connection for bilateral great toe and right 5th toe scars, and assigned a 20 percent evaluation pursuant to DC 7804 for painful scars. To date, the Veteran has not filed a NOD with regard to the ratings assigned. Therefore, that rating is not currently on appeal and will not be further addressed. The evidence of record includes a November 2013 VA examination which noted diagnoses for chronic ingrown toenails post-operative with anonychia (absence of toenail) of right great toenail and partial anonychia of left great toenail. The Veteran’s ingrown toenails were noted to not cause scarring or to have resulted in any system manifestations due to any skin disease. The examiner noted that the Veteran’s service-connected ingrown toenails had not required treatment with oral or topical medications in the past 12 months. The examiner did not indicate the total approximate body area covered by the Veteran’s ingrown toenails because the Veteran did not have any the listed skin conditions. The Veteran last underwent a VA examination in October 2019. The examiner noted a diagnosis for bilateral ingrown big toenails post-operative with anonychia of right great toenail and partial anonychia of left great toenail. The Veteran reported that her symptoms had decreased since the excision of her big toenails in 2005. The examiner noted that the Veteran’s bilateral toenail condition had not been treated with medication nor had required any treatment or procedures in the past 12 months. Her bilateral toenail condition was found to cover less than 5 percent of her total body area, and none of her exposed area. The Veteran’s bilateral big toe ingrown toenail condition is rated under 38 C.F.R. § 4.118, DC 7813-7824. Accordingly, the bilateral big toe ingrown toenail condition has been rated by analogy. Under the regulations in effect at the time the Veteran filed her claim, DC 7813, directed the rater to rate as disfigurement of the head, face, or neck under DC 7800, scars under DCs 7801, 7802, 7803 or 7805, or dermatitis under DC 7806, depending upon the predominant disability. As the Veteran’s ingrown toenail affects her feet, the Board finds that DC 7806 would apply. Pursuant to 38 C.F.R. § 4.118, DC 7806, a noncompensable rating is warranted when the skin condition covered less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy was required during the past 12 month period. A 10 percent disability rating was warranted for at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent of the exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent disability rating was warranted for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or, systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating was warranted for more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118. Pursuant to DC 7824 in effect at the time the Veteran filed her claim, diseases of keratinization, a noncompensable rating was assigned if the disease required no more than topical therapy during the past twelve month period. A 10 percent evaluation was warranted for localized or episodic cutaneous involvement and intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of less than six weeks during the past twelve month period. A rating of 30 percent was warranted when the skin disorder was manifested by either generalized cutaneous involvement or systemic manifestations, with intermittent systemic medication such as immunosuppressive retinoids required for a total duration of six weeks or more, but not constantly, during the past twelve month period. A rating of 60 percent was warranted when there was either generalized cutaneous involvement or systemic manifestations, with constant or near-constant systemic medications such as immunosuppressive retinoids required during the past twelve month period. 38 C.F.R. § 4.118, DC 7824. Under the General Rating Formula for the Skin, effective August 13, 2018, which encompasses DCs 7806, 7813 and 7824, a 0 percent rating is provided for no more than topical therapy required over the past 12-month period and at least one of the following: (i) characteristic lesions involving less than 5 percent of the entire body affected; or (ii) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is provided for at least one of the following: (i) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; (ii) at least 5 percent, but less than 20 percent, of exposed areas affected; or (iii) intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is provided for at least one of the following: (i) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (ii) systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is provided for at least one of the following: (i) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (ii) constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118 (effective August 13, 2018). After a review of the evidence of record, the Board finds that a compensable rating is not warranted. In this regard, the Veteran has reported that her symptoms had improved since her toenails were removed in 2005. Her bilateral toenail condition has not required any treatment during the period on appeal, including any topical or systemic medication, nor has her bilateral toenail condition been found to cover at least 5 percent of her total body area, or any percent of her exposed area. Accordingly, a compensable rating is not warranted under either DC 7806 or 7824 (in effect prior to August 2018), or under the General Rating Formula for the Skin effective August 2018. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for bilateral big toe ingrown toenail. The claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.118, DCs 7806, 7813, 7824 (prior to and effective August 13, 2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. COPD The Veteran filed an increased rating claim in April 2013. The above-mentioned November 2013 VA examination noted a diagnosis for COPD. The examiner noted that the Veteran’s respiratory condition required the intermittent use of oral or parenteral corticosteroid medications, inhaled medications, and oral bronchodilators. Her COPD treatment did not include antibiotics or outpatient oxygen therapy. A PFT revealed pre-bronchodilator results showing FEV-1 of 43 percent predicted, and FEV-1/FVC of 46 percent predicted, and post-bronchodilator results showing FEV-1 45 percent predicted and FEV-1/FVC of 47.4 percent predicted. The examiner noted that the FEV-1/FVC testing results most accurately reflected the Veteran’s current pulmonary function. The examiner also noted that DLCO testing was not conducted because it was not indicated for the Veteran’s particular case. Exercise capacity testing was not conducted. A March 2014 VA medical record shows the Veteran’s COPD was treated with daily use of Albuterol, Spiriva and Symbicort. A March 2014 PFT revealed pre-bronchodilator results showing FEV-1 of 36 percent predicted, FEV-1/FVC of 61 percent predicted, and DLCO of 39 percent predicted. Post-bronchodilator results showed FEV-1 of 47 percent predicted, and FEV-1/FVC of 64 percent predicted. The examiner did not indicate which testing results most accurately reflected the Veteran’s current pulmonary function. See VA Medical Records Received June 2014 and December 2019. An April 28, 2016 VA PFT noted pre-bronchodilator results showing FEV-1 of 37 percent predicted, FEV-1/FVC of 64 percent predicted, and DLCO of 20 percent predicted. The Veteran’s diffusing capacity was noted as severely reduced. The examining examiner noted that the Veteran was unable to give post-bronchodilator due to having taken an inhaler prior to her appointment. See VA Medical Records Received March 2018. The Veteran last underwent a VA respiratory examination in October 2019. The examiner noted a diagnosis for COPD. The Veteran reported that she became short of breath more quickly and that she had been using a rescue inhaler on a daily basis. She denied having been hospitalized or having visited an emergency room due to her COPD which required nebulizer treatment. A PFT revealed pre-bronchodilator results of FEV-1 of 34 percent predicted, FEV-1/FVC of 43 percent predicted, and DLCO of 30 percent predicted. The examiner noted that post-bronchodilator testing results could not be obtained because the Veteran had taken an Albuterol inhaler and Spiriva inhaler treatment just prior to the PFT. The examiner further noted that FEV-1 testing results most accurately reflected the Veteran’s current level of disability. In addition, the examiner noted that after examining the Veteran, listening to her lay statements combined with a review of her medical records, that the severity of her service-connected COPD had remained the same since her previous April 2016 PFT. After a review of the evidence of record, the Board finds that, prior to April 28, 2016, a rating in excess of 60 percent is not warranted. The Board further finds that effective April 28, 2016, a staged 100 percent rating is warranted. The Veteran’s COPD is rated pursuant to C.F.R. § 4.97, DC 6604. Under DC 6604, a 60 percent disability rating is warranted for FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg in (with cardiorespiratory limit). A maximum schedular 100 percent disability rating is warranted for FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg in oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6604 (2016). The Board notes that there are special provisions for the application of the rating criteria for certain diagnostic codes, including DC 6600, 6603, 6604, 6825-6833, and 6840-6845. 38 C.F.R. § 4.96(d). PFTs are required to evaluate these conditions, except when the results of maximum exercise capacity test are of record and are 20 ml/kg or less; when pulmonary hypertension cor pulmonale or right ventricular hypertrophy has been diagnosed; when there have been one or more episodes of acute respiratory failure; or when outpatient oxygen therapy is required. 38 C.F.R. § 4.96(d)(1). If DLCO (SB) results are not of record, such conditions are evaluated based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). When PFTs are not consistent with clinical findings, conditions are evaluated based on the PFTs unless the examiner states why they are not a valid indication or respiratory functional impairment in a particular case. 38 C.F.R. § 4.96(d)(3). Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). When evaluating based on PFTs, post-bronchodilator results are to be used unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case, the pre-bronchodilator results are used for rating purposes. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFTs, so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). Turning to the period on appeal prior to April 28, 2016, the Board finds that a rating in excess of 60 percent is not warranted. In this regard, PFT data does not show the Veteran’s COPD manifested by post-bronchodilator FEV-1, FEV-1/FVC or DLCO results less than 40 percent. Nor does the evidence of record reflect a maximum exercise capacity less than 15 ml/kg in oxygen consumption (with cardiac or respiratory limitation), cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure. Additionally, the Veteran is not shown to have required outpatient oxygen therapy during that period on appeal. Turning to the period on appeal effective April 28, 2016, and prior to October 3, 2019, the Board finds that a staged 100 percent rating is warranted. In this regard, the Board notes that the Veteran’s 100 percent rating is based on the PFT results noted in the October 2019 VA examination report which revealed pre-bronchodilator FEV-1 testing results of 34 percent predicted. The examiner noted that the FEV-1 testing results most accurately reflected the Veteran’s level of disability. The examiner further noted that post-bronchodilator testing results could not be obtained because the Veteran had just taken inhaler treatments just prior to the PFT. Importantly, the examiner found that the severity of the Veteran’s COPD had remained the same since the April 2016 PFT. A review of the April 2016 PFT revealed pre-bronchodilator FEV-1 testing results of 37 percent predicted. Similarly, the examining physician noted that post-bronchodilator testing results could not be obtained because the Veteran taken her inhaler treatments prior to the PFT. Therefore, the evidence of record shows that the severity of the Veteran’s COPD was substantially similar to the severity noted in the October 2019 VA examination report; i.e. FEV-1 less than 40 percent predicted. Accordingly, as the April 2016 PFT shows substantially similar findings as compared to the October 2019 VA examination PFT, and in consideration that the VA examiner determined that the Veteran’s level of severity had remained consistent since the April 28, 2016 PFT, the Board finds that a 100 percent rating is warranted effective April 28, 2016. In sum, the Board concludes that prior to April 28, 2016, the preponderance of the evidence is against a rating in excess of 60 percent disabling. Effective April 28, 2016, the Board finds that a 100 percent rating is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.97, DC 6604; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). During the pendency of the appeal, the Veteran has been service connected for the following disabilities: COPD rated 60 percent disabling effective April 2013, and 100 percent disabling effective April 2016; depressive disorder rated 70 percent disabling effective June 2014; bronchitis rated 10 percent disabling effective July 1994, noncompensable effective June 1997, and 30 percent disabling from June 2005 to April 2013; painful scars (bilateral great toe, left 2nd toe and right 5th toe) rated 20 percent disabling effective October 2019; right 5th toe fracture residuals rated 10 percent disabling effective July 1994; lumbar spine disability rated 20 percent disabling effective July 1994, noncompensable effective June 1997, and 10 percent disabling effective July 2004; left knee disability rated 10 percent disabling effective July 1994, noncompensable effective June 1997, and 10 percent disabling effective January 2005; right knee disability rated 10 percent disabling effective July 1994, noncompensable effective June 1997, and 10 percent disabling effective January 2005; left hallux valgus rated noncompensable effective May 15, 2007, 100 percent disabling effective May 23, 2007, 10 percent disabling effective August 2007, 100 percent disabling effective December 2009, and 10 percent disabling effective March 2010; right hallux valgus rated 100 percent disabling effective May 2007, 10 percent disabling effective August 2007, 100 percent disabling effective March 2010, and 10 percent disabling effective June 2010; and, right 4th toe hammer toe rated 100 percent disabling effective August 2013, and noncompensable effective October 2013. The Veteran is also service connected for the following disabilities rated noncompensable: hemorrhoids; bilateral ingrown big toenail; status post left bunionectomy scar; status post right bunionectomy scar; left 2nd hammer toe, right 4th toe scar; and, left 2nd toe scar. The Board notes the Veteran has met the schedular rating criteria throughout the period on appeal. The Board further noted that the Veteran has not worked since 2010. See September 2020 Brief and attached VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The evidence of record includes November 2013 VA examination reports noting that the Veteran’s service-connected hemorrhoid condition partially limited her sedentary activities, and that her lumbar spine disability impacted her ability to work due to causing partial impairment of physical activities such as heavy lifting, pushing and pulling. Her service-connected COPD, bilateral foot, bilateral knee and ingrown toenail conditions were found to impact the Veteran’s ability to run, jump or walk long distances. In June 2018, the Veteran submitted an April 2018 letter from Dr. Barnes, a certified rehabilitation counselor. The letter noted a review of the Veteran’s medical records including VA examinations, the November 2013 VA examination reports, and a Residual Functional Capacity Evaluation issued by Dr. Murphy. Based on the above, Dr. Barnes found the Veteran “totally and permanently precluded from performing work at a substantial gainful level due to the severity of her service-connected [disabilities].” In this regard, Dr. Barnes noted that the Veteran had an inability to sustain a full-time work schedule, was impaired in her ability to sit, stand or walk for prolonged periods of time, had lapses in concentration due to pain requiring extra breaks, and that she could not focus sufficiently to perform skilled, semiskilled or even unskilled work tasks. Accordingly, the Veteran was found unable to perform her prior employment as a program analyst, housekeeper or sales-person. An October 2019 VA respiratory examination found that the Veteran’s COPD resulted in need for continued and immediate access to rest periods from any and all physical exertion as needed to relieve her symptoms including dizziness, fatigue, dyspnea, angina and/or syncope. An October 2019 VA foot examination found the Veteran unable to perform tasks that required prolonged standing, prolonged walking, or any degree of running, crawling or stooping. Lastly, in September 2020, the Veteran submitted a mental disorder disability benefits questionnaire (DBQ) which noted a diagnosis for depressive disorder with anxious features. The examiner determined that the Veteran’s psychiatric disorder was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that her depressive disorder caused social and relational issues including social anxiety, irritability, communication problems, isolation and avoidance of most social interactions especially in a social and work setting. She reported that she last worked in 2010 and that she did not work due to her physical and psychiatric conditions. The examining psychologist noted the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; impaired impulse control such as unprovoked irritability with periods of violence; neglect of personal appearance any hygiene; and, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In addition, the psychologist stated that the Veteran could not sustain the stress from a competitive work environment or be expected to engage or adequately function in gainful work activity due to her depressive disorder. After a review of the evidence of record, the Board finds that the totality of the record indicates the functional impairments caused by the Veteran’s service-connected disabilities render her unable to secure or follow a substantially gainful occupation. In this regard, the evidence of record indicates the functional impairments caused by her service-connected disabilities prevented her from obtaining or maintaining an occupation involving physical labor as her service-connected disabilities made it difficult for her to lift heavy objects or to work on her feet for a normal workday. In addition, the Board finds that the service-connected disabilities have been shown to prevent the Veteran from following a substantially gainful occupation as the evidence of record indicates her service-connected depressive disorder results in near continuous panic affecting the ability to function independently, appropriately and effectively, memory loss, irritability or outbursts of anger, difficulty in adapting to stressful circumstances, including work or a worklike setting, difficulty in establishing and maintaining effective work and social relationships, and an inability to sustain the stress form a competitive work environment. The Board finds that the combined persistent functional effects would likely prevent the Veteran from being effectively supervised, from being able to sustain the focus and attention needed to learn necessary skills, or to complete a full, productive work schedule in a substantially gainful occupation. Accordingly, based on the evidence of record, the Board finds the functional effects of the Veteran’s service-connected disabilities have rendered her unable to secure and follow a substantially gainful occupation throughout the appeal period. Therefore, entitlement to a TDIU is warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Headaches As noted above, this claim was remanded in October 2018 in order to obtain a VA examination. In pertinent part, the Board had determined that the Veteran had a current diagnosed tension headaches condition. The claim was remanded to obtain a VA examination to determine the nature and etiology of her diagnosed headache condition. The requested VA examination was obtained in October 2019. The examiner noted that the Veteran had not been diagnosed with a headache condition. This finding was based on the absence of clinical documentation showing chronic symptoms and that the Veteran did not meet the diagnostic criteria for any chronic headache syndrome per review of the current peer-reviewed clinical literature, current history, physical examination and review of available medical records. The Veteran reported that her headache condition had worsened in terms of severity and frequency. She also reported that she thought her headache condition was due to mental stressors and occurred when she was “down in the dumps.” The examiner noted that the Veteran took Goody’s powder and Tramadol to treat her headaches. The examiner also noted symptoms including headache pain located at the back of her head which radiated to the top of her head. The examiner opined that it was “less likely than not (less than 50% probability)” that the Veteran had a headache condition etiologically related to service. In support of this opinion, the examiner noted that the Veteran was seen for a single headache episode described as periorbital pain related to an eye strain. As such, the examiner found that single encounter insufficient to establish a diagnosis for any chronic headache condition. Additionally, the examiner noted no clinical documentation or objective evidence for chronic headache syndrome. The examiner further noted that the Veteran denied having headaches during her separation examination, and a review of her medical records did not show any documentation of any diagnosed condition. The Board finds the October 2019 VA examination inadequate. The Board finds the negative nexus opinion based on an inaccurate factual predicate; namely, that the Veteran was seen for a single headache episode during service. Instead, a review of the STRs shows the Veteran was first seen in February 1981 for complaints of frontal headaches. The Veteran was assessed with an upper respiratory infection. A March 1981 STR shows the Veteran complained of frontal headaches the past week. She was assessed with sinus headaches. In April 1987, the Veteran reported that her apartment had been broken into and she needed some medication to calm her down. She also reported having a steady bifrontal headache, tiredness and crying spells. During an October 1990 periodic examination, the clinician noted frequent headaches, that the Veteran underwent an eye examination, and that wearing glasses had reduced her headache incidences. A February 1992 STR noted complaints of headaches around the Veteran’s eyes, an eye strain and that the Veteran worked on computers and did a lot of reading. A March 1992 STR shows the Veteran complained of a severe periorbital headache not relieved by Tylenol. The Veteran was noted as positive for an eye strain. The Veteran was referred to optometry. Therefore, the STRs show that the Veteran was seen repeatedly related to headache complaints, some potentially related to a sinus condition, some potentially related to psychiatric stressors, and some potentially related to an eye condition. Post-service evidence of record also shows that the Veteran reported intermittent tension headaches (July 2017) and an August 2017 VA medical record shows the Veteran underwent a neurological evaluation which noted tension headaches. More recently, and shortly prior to her October 2019 VA examination, an August 2019 VA medical record noted chronic pain including headaches. She was diagnosed with chronic pain syndrome. Accordingly, the Board finds the October 2019 VA examination inadequate and that a remand is necessary to obtain a VA examination to determine the nature and etiology of the Veteran’s diagnosed headache condition. The Board further finds that as the Veteran’s tension headaches have been shown to be potentially related to psychiatric stressors, entitlement to service connection on a secondary basis has been raised by the record and a nexus opinion with regard to this theory of entitlement to service connection is necessary to properly adjudicate this issue on appeal. 2. Right 2nd and 3rd Hammer Toes As noted above, this case was remanded in October 2018. With regard to the service connection claim for right 2nd and 3rd hammer toes, the Board remanded the claim for a VA examination in order to obtain a medical opinion as to the theory of aggravation. In this regard, the Board noted that the January 2014 VA examiner had stated that hammer toes were often caused by footwear or secondary to a medical condition, but did not indicate what medical conditions caused hammer toes. Accordingly, the VA examiner was specifically asked to opine whether the Veteran’s hammer toes were caused or aggravated by a service-connected disability, to include the service-connected foot conditions, lumbar spine disability and bilateral knee conditions. In a subsequent October 2019 VA examination report, the examiner opined that it was “less likely than not (less than 50 percent probability)” that the conditions were proximately due to or the result of any service-connected foot condition. Thereafter, addendum medical opinions were obtained in April 2020 (regarding direct service connection) and May 2020 (secondary service connection). With regard to the Veteran’s right 2nd and 3rd hammer toes, the May 2020 VA examiner also opined that the conditions were “less likely than not” aggravated beyond their natural progression by the right foot conditions. However, neither the October 2019 nor the May 2020 VA examiner addressed whether the Veteran’s right 2nd and 3rd hammer toes were caused or aggravated by any other service-connected disability, including lumbar spine disability or bilateral knee conditions, as requested by the October 2018 Board decision. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the remand). The Board additionally notes that the Veteran is now service connected for right 5th hammer toe, and neither the October 2019 nor the April 2020 VA examination report considered whether the effects of that condition caused or aggravated the right 2nd and 3rd hammer toes. Accordingly, a remand is necessary to obtain another VA opinion. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, obtain an addendum to determine the nature and etiology of the Veteran’s diagnosed right 2nd and 3rd hammer toes. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed right 2nd and 3rd hammer toes were caused by a service-connected disability, to include the various service-connected foot (right 5th toe fracture residuals, hammer toes affecting the left 2nd and right 4th and 5th toes, and hallux valgus), spine, and/or knee disabilities? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed right 2nd and 3rd hammer toes were aggravated by a service-connected disability, to include the various service-connected foot (right 5th toe fracture residuals, hammer toes affecting the left 2nd and right 4th and 5th toes, and hallux valgus) lumbar spine, and/or knee disabilities? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. After the development in #1 has been completed, obtain an addendum by an appropriate examiner to determine the nature and etiology of her diagnosed tension headache condition. If determined necessary, an examination of the Veteran should be conducted, either in-person or via telehealth. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed headache condition is etiologically related to her period of service? The examiner is asked to consider the Veteran’s STRs showing frontal headaches associated with an upper respiratory infection (February 1981), a sinus condition (March 1981), psychiatric stressors (April 1987) Eye condition (October 1990 – March 1992. The examiner is further asked to consider the Veteran’s post-service medical record showing sinus related headaches (May 2009), tension headaches (July and August 2017), and headaches associated with chronic pain syndrome (August 2019). (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed headache condition was caused by service-connected depressive disorder? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed headache condition was aggravated by a service-connected depressive disorder? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner should review pertinent documents in the Veteran’s claims file in connection with the opinion. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.