Citation Nr: 21010568 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-40 322 DATE: February 25, 2021 ORDER An increased rating of 50 percent for migraine headaches is granted. Service connection for right weak foot is denied. Service connection for left weak foot is denied. REMANDED Service connection for eczema is remanded. Service connection for cervical strain/cervical radiculopathy is remanded. Service connection for right upper extremity peripheral neuropathy is remanded. Service connection for left upper extremity peripheral neuropathy is remanded. Entitlement to an increased rating in excess of 10 percent for lumbar spine degenerative joint disease is remanded. Service connection for right lower extremity peripheral neuropathy is remanded. Service connection for left lumbar radiculopathy is remanded. Service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 10 percent for right foot plantar fasciitis/residuals of a bunionectomy prior to December 17, 2019 is remanded. Entitlement to a rating in excess of 20 percent for right foot plantar fasciitis/residuals of a bunionectomy since December 17, 2019 is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran has experienced migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The preponderance of the evidence of record is against finding that the Veteran has had right weak foot at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had left weak foot at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent for headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for service connection for right weak foot are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left weak foot are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from July 2005 through July 2007. A Board hearing was held in May 2019. A transcript is of record. The Board remanded the issues on appeal for additional development in September 2019. In a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for generalized anxiety disorder and right lumbar radiculopathy. Those claims have been granted in full and are no longer on appeal. The AOJ granted the Veteran an increased rating of 20 percent for right foot plantar fasciitis effective December 17, 2019, which does not constitute a full grant of the benefit sought. On August 3, 2020, the AOJ recertified that claim to the Board, along with the remaining claims on appeal. On October 27, 2020, the Veteran submitted a VA Form 10182 attempting to appeal the right foot plantar fasciitis increased rating claim under the Appeals Modernization Act (AMA). However, because the Form 10182 was received by outside the opt in period outlined in 38 C.F.R. § 19.2, the Board retains jurisdiction of the appeal under the Legacy system. 1. Increased Rating for Migraine Headaches The Veteran contends she is entitled to rating in excess of 10 percent for her service-connected headaches, asserting that she experiences very frequent completely prostrating and prolonged headaches. See, e.g., May 2019 Hearing Transcript, at 3-7. Migraine headaches are rated under Diagnostic Code 8100. 38 C.F.R. § 4.124a. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months are rated at 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The term “prostrating attack” is not defined in regulation or case law but can be defined as extreme exhaustion or powerlessness. Cf. Fenderson, 12 Vet. App. at 126-27 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack); DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012). “Inadaptability” is also not defined in Diagnostic Code 8100, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). It has been held that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work to qualify for a 50 percent rating. Id. In this regard, the Court has explained that if “economic inadaptability” were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability resulting from a service-connected disability rather than just a 50 percent rating. Id., citing 38 C.F.R. § 4.16. In Pierce, the Court discussed the notion that consideration must also be given as to whether the disability is capable of producing severe economic inadaptability, regardless of whether the condition is actually causing such inadaptability. See Pierce, 18 Vet. App. at 446. In this regard, the decision mentions that VA conceded that the words “productive of” could be read to mean either “producing” or “capable of producing.”  Id. at 446, 446-47. After considering the totality of the evidence currently of record and affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s migraines more nearly approximate the criteria for a 50 percent rating for the entire period on appeal. As early as the October 2012 VA examination, the Veteran reported headaches occurring two to three times each week, lasting at least several hours and up to two days. She reported experiencing symptoms of nausea, sensitivity to light and sound, and seeing spots and flashes. In addition, she reported experiencing chronic, daily tension headaches. The examiner noted that the Veteran’s headaches lasted more than two days, but only experienced prostrating attacks once in two months and were not very frequent or prolonged, at odds with the Veteran’s subjective experiences. In August and November 2013 VA treatment records, the Veteran continued to report experiencing headaches at least once per week, lasting at least several hours and up to two days. Her headaches were not relieved by sleep and at times she experienced photophobia and phonophobia. During the May 2019 Board hearing, the Veteran again reported experiencing prostrating headaches three to five times a month, during which she was sensitive to light and sound, and had to lie down to get relief. The most recent December 2019 VA examiner noted the Veteran’s report that her headaches had increased in severity. And yet, despite her earlier and consistent reports of symptoms that required her to lie down to get relief, the examiner opined that she did not experience any characteristic prostrating attacks. Regarding severity, the Board finds the Veteran’s attacks are completely prostrating and prolonged. The evidence demonstrates that during a migraine, the Veteran experiences sensitivity to sound, nausea, spots and flashes, and, on at least one occasion, transient blindness. And, despite finding that the Veteran’s headaches were not prolonged, the two VA examination reports document headache duration of up to two days. The Board finds that a two-day headache constitutes prolonged duration. Considering frequency, although the October 2012 VA examiner determined that the Veteran only experienced prostrating attacks once every two months, and the December 2019 examiner reported the Veteran did not have any characteristic prostrating attacks, the Veteran has reported experiencing migraines with a frequency of at least once a week and up to two to three times per week. The Veteran is competent and credible to report what she feels, such as the frequency and severity of headache-related pain. Accordingly, the Board finds that her statements are credible as to the matter of frequency and severity of her migraines. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 3.159 (a)(2). And, as such, the Board finds that the Veteran’s migraines occurred very frequently during the entirety of the period on appeal. Finally, the Veteran has reported missing at least one day of work each month due to her headaches. Because the Veteran’s headaches are very frequent, completely prostrating, and prolonged and have been so severe as to cause the Veteran to miss work the Board finds that they are capable of causing severe economic inadaptability. In sum, the Board finds the Veteran’s migraine symptoms more nearly correspond with the 50 percent disability rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for the entire period on appeal. As 50 percent is the highest rating for migraines under DC 8100, this grant represents a complete grant of this appeal. 38 C.F.R. § 4.124a. 2. Service Connection for Bilateral Weak Foot The Veteran contends that she is entitled to service connection for bilateral weak foot, asserting that her feet are weak due to pain. See, e.g., December 2012 VA examination report. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have either right or left weak foot and has not had the same at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Pursuant to Diagnostic Code 5277, weak foot is a symptomatic condition secondary to many constitutional conditions that is characterized by atrophy of the musculature, disturbed circulation, and weakness of the foot. In this case, there is no indication in the medical evidence that the Veteran has experienced atrophy of the musculature, disturbed circulation, or weakness of the foot. A February 2012 VA examiner found no evidence of weak foot. As noted above, during the December 2012 VA examination the Veteran stated that pain made her feet weak; however, the VA examiner found that the Veteran did not have weak foot, stating that all the Veteran’s bilateral muscle groups had normal strength. A July 2015 VA examiner found no evidence of any vascular disease. And finally, the December 2019 VA examiner did not find evidence of weak foot. Further, despite consistent treatment from September 2007 to the present, VA treatment records do not contain any descriptions of, or treatment for, weak foot, or the characteristic atrophy of the musculature, disturbed circulation, and weakness of the foot. The Board acknowledges the Veteran’s assertion that she experiences pain in her bilateral feet that has resulted in weakness; however, as documented in the various VA examination reports, there is no indication that her pain has resulted in any of the functional loss indicated by the rating criteria related to weak foot, i.e., atrophy of the musculature, disturbed circulation, or weakness of the foot. Therefore, service connection for bilateral condition characterized by a weak foot is denied. REASONS FOR REMAND 1. Service Connection for Eczema. There has not been substantial compliance with the Board’s previous remand directives regarding the issue of service connection for eczema. The December 2019 VA examiner did not address the Veteran’s December 2006 in-service diagnosis and treatment of eczema. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the December 2019 VA examiner found that the Veteran’s eczema pre-existed her active duty service, but there is no indication in the Veteran’s service records that an entrance examination was conducted at the outset of her period of active duty service. As such, the presumption of soundness does not attach. 38 U.S.C. § 1111; Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Accordingly, on remand, the AOJ must obtain a medical opinion to determine whether the there was an increase in the Veteran’s eczema during her active duty service, and if so, whether that increase was clearly and unmistakably due to the natural course of the disease. 38 U.S.C. § 1153; Smith at 47-8. 2. Service Connection for Cervical Strain/Cervical Radiculopathy The Veteran was afforded a VA examination in December 2019, as required by the Board’s prior remand, but the examiner failed to provide an etiological opinion. Therefore, there has not been substantial compliance with the Board’s previous remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Service Connection for Bilateral Upper Extremity Peripheral Neuropathy The Veteran underwent VA examination for her claimed upper extremity peripheral nerve conditions in December 2019. The VA examiner noted the Veteran’s complaints of tingling in her fingertips in 2000 but did not address the Veteran’s in-service complaints of numbness in her fingers or her later complaints and treatment for pain radiating into her shoulders and arms. See, e.g., December 2006 Service Treatment Records; March 2011 VA Treatment Records; May 2015 VA Examination Report; July 2016 VA Treatment Records; May 2019 Board Hearing Transcript, at 34-40. The examination was therefore inadequate. 4. Increased Rating for Lumbar Spine Degenerative Joint Disease The Veteran was afforded VA examination in December 2019 regarding her lumbar spine, but the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). During the examination, the Veteran reported that she experienced constant pain described as 6 out of 10 that increased to 10 out of 10 at times. And during the May 2019 Board hearing she reported back spasms and flare-ups that diminished her range of motion. Despite these reports, the examiner stated the Veteran did not report flare-ups and did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. As such, a new exam is required on remand. 5. Service Connection for Left Lumbar Radiculopathy and Left Lower Extremity Peripheral Neuropathy The December 2019 VA examiner did not address the Veteran’s long-stranding complaints and treatment for neurological symptoms related to her left lower extremity. See May 2009 VA Treatment Records; April 2017 VA Treatment Records; August 2018 VA Treatment Records. In a March 2020 VA treatment record, the again complained of pain radiating into her left lower extremity. The December 2019 VA examination is therefore inadequate, and an additional VA examination is necessary. 6. Service Connection for Right Lower Extremity Peripheral Neuropathy In its July 2020 rating decision, the AOJ granted service connection for right lumbar radiculopathy but, in the July 2020 supplemental statement of the case, continued to deny service connection for right lower extremity peripheral neuropathy. It is unclear to the Board from the medical evidence of record whether the Veteran has a right lower extremity neurological condition separate from the now service connected right lumbar radiculopathy. An additional VA examination is therefore necessary. 7. Increased Rating for Right Foot Plantar Fasciitis/Residuals of Bunionectomy The Veteran was afforded a VA examination in December 2019, as required by the Board’s prior remand, but the examiner failed to either distinguish symptoms that are attributable to the Veteran's plantar fasciitis and symptoms attributable to bunionectomy residuals or explain why a distinction could not be made. Therefore, there has not been substantial compliance with the Board’s previous remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the examiner gave the Veteran a new diagnosis of calcaneal bone spurs but gave contradictory etiological opinions. In one instance, the examiner indicated that the condition arose from overuse while the Veteran was in service, but then opined that the condition was less likely than not related to service. Remand is required to obtain a clarification of the examiner’s etiological opinion. The December 2019 VA examiner found that the Veteran had pes planus that pre-existed her active duty service, but there is no indication in the Veteran’s service records that an entrance examination was conducted at the outset of her period of active duty service. As such, the presumption of soundness does not attach. 38 U.S.C. § 1111; Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Accordingly, on remand, the AOJ must obtain a medical opinion to determine whether the there was an increase in the Veteran’s pes planus during her active duty service, and if so, whether that increase was clearly and unmistakably due to the natural course of the disease. 38 U.S.C. § 1153; Smith at 47-8. The matters are REMANDED for the following action: 1. The Veteran should again be asked whether she has additional evidence pertaining to her claims on appeal. Records from Dr. Patel in Ocean Township, New Jersey; Dr. Sivanesan in Freehold, New Jersey; Dr. Clinch; Foot and Ankle Group in Columbus, New Jersey; Thompson Health Care in Forked River, New Jersey; and Seaview Orthopedics in Freehold, New Jersey and any relevant updated VA and private treatment received by the Veteran should be associated with the record. Any additional relevant VA treatment records should also be obtained. If the records are not available, such unavailability should be documented in the record. The Veteran and her representative should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 2. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s eczema, which existed prior to service, at least as likely as not increased in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? The examiner must specifically discuss the Veteran’s December 2006 in-service treatment for eczema. 3. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s cervical spine disability is at least as likely as not related to any in-service injury or event, to specifically include physical stress and strain from participating in parachute jumps during service. 4. Schedule the Veteran for a VA examination for her claimed bilateral upper extremity neurological conditions. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any diagnosed left or right upper extremity neurological condition at least as likely as not proximately due to a cervical spine disability? Is any diagnosed left or right upper extremity neurological condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by her cervical spine disability? 5. Schedule the Veteran for an examination by an appropriate VA examiner to determine the current severity of her service-connected lumbar spine condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing and must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In providing an opinion regarding the severity of flare-ups, the examiner must discuss the Veteran’s reported increase of pain and decrease in range of motion during flare-ups. 6. Schedule the Veteran for a VA examination for her claimed bilateral lower extremity neurological conditions. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner must specifically determine whether the Veteran has a right lower extremity neurological condition that is separate and distinct from her now service-connected lumbar spine radiculopathy. The examiner is asked to provide a response to the following: Is any lower extremity neurological condition at least as likely as not proximately due to her service-connected lumbar spine disability? Is any lower extremity neurological condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by her service-connected lumbar spine disability? 7. Schedule the Veteran for an examination by an appropriate VA examiner to determine the current severity of her service-connected right foot disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, identify symptoms that are separately attributable to the Veteran’s either plantar fasciitis, bunionectomy residuals, or any other identified right foot disability. The examiner should determine if the Veteran has a right foot condition other than plantar fasciitis and bunionectomy residuals. For any right foot condition other than plantar fasciitis and bunionectomy residuals identified, to specifically include calcaneal bone spur, the examiner should give opinions as to whether it is at least as likely as not that the disorder: (a) was incurred during the Veteran’s service, or (b) resulted from an in-service injury or event. The examiner must also determine whether the Veteran’s pes planus, which existed prior to service, at least as likely as not increased in severity during service. If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease?   8. Then readjudicate the claim. If any benefit sought is not granted, the Veteran and her representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine 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.