Citation Nr: 21016057 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 01-07 343 DATE: March 19, 2021 ORDER Entitlement to a rating of 30 percent, but no higher, for residuals of a fracture of the left fifth metatarsal (left foot disability) is granted. REMANDED Entitlement to service connection for a right shoulder disorder, to include as secondary to the service-connected residuals of a fracture of the left fifth metatarsal and the service-connected status-post left shoulder separation is remanded. Entitlement to service connection for a left hip disorder, to include as secondary to the service-connected residuals of a fracture of the left fifth metatarsal and the service-connected status-post left shoulder separation is remanded. Entitlement to service connection for a right hip disorder, to include as secondary to the service-connected residuals of a fracture of the left fifth metatarsal and the service-connected status-post left shoulder separation is remanded. Entitlement to service connection for a left ankle disorder, to include as secondary to the service-connected residuals of a fracture of the left fifth metatarsal and the service-connected status-post left shoulder separation is remanded. Entitlement to service connection for a right ankle disorder, to include as secondary to the service-connected residuals of a fracture of the fifth metatarsal and the service-connected status-post left shoulder separation is remanded. Entitlement to service connection for a right foot disability, to include arthritis, to include as due to service-connected residuals of a fracture of the left fifth metatarsal, is remanded. Entitlement to an earlier effective date prior to the assigned effective date of April 27, 2006 for residuals of a left fifth metatarsal fracture is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or being housebound is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire period on appeal, the evidence of record indicates that the Veteran's service-connected left foot disability is manifested by severe chronic pain, inability to stand or walk for prolonged periods, disturbance of locomotion, and extreme swelling, without evidence of actual loss of use of the left foot or amputation. CONCLUSION OF LAW The criteria for the assignment of a 30 percent evaluation for a left foot disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from August 1979 to November 1981. The claims were remanded by the Board of Veterans’ Appeals (Board) in July 2018 (for further development), July 2017 (in accordance with a March 2017 Order from the United States Court of Appeals for Veterans Claims that was issued after the filing of a March 2017 Joint Motion for Partial Remand that followed an April 2016 Board denial of the claims), and in January 2017 (for a scheduling of a video conference hearing, the request of which the Veteran subsequently withdrew). Prior to the April 2016 Board denial of the claims, the claims were remanded in January 2011 and July 2012. The Board notes that the record includes a diagnosis of arthritis in the first metatarsal right foot. See October 2020 VA medical opinion. It is well settled that a claimant does “not file a claim to receive benefits only for a particular diagnosis, but for the affliction of his... condition, whatever that is, causes him.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Given such, the Board finds it appropriate to recharacterize the service connection right foot disability issue as a single claim for entitlement to service connection for a right foot disability, to include arthritis in the first metatarsal right foot. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Disability evaluations are based upon 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. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.7, 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of the veteran's disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other VA regulations, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability. See 38 C.F.R. §§ 4.1, 4.2; see also Schafrath, 1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran's disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40. It is essential that the examination on which disability ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. See id. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. See id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See id. The evaluation of joint disabilities must involve the following factors: less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination and impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity, or atrophy of disuse. See 38 C.F.R. § 4.45. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing must also be considered. See id. A rating based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). Functional loss caused by pain must be rated as though it were caused by another factor, such as deformity, atrophy, adhesions, or any of the other factors cited above. See Schafrath, 1 Vet. App. at 592. In rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See id. Painful motion is an important factor of disability, and facial expressions such as wincing exhibited in the presence of pressure on or manipulation of the affected joints should be carefully noted and definitely related to the affected joints. See 38 C.F.R. § 4.59. Actually painful, unstable, or malaligned joints due to healed injury are at the very least entitled to the minimum compensable rating for the affected joint. See id. Crepitation within the joint structures or the soft tissues, such as the tendons or ligaments, should be noted carefully as points of contact which are diseased, and flexion elicits such manifestations. See id. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. See id. When adjudicating disabilities evaluated based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment must be applied, and examinations must assess whether the disability at issue manifested weakened movement, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Such inquiry should not be limited to muscles or nerves, and, if feasible, these determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. See id. In order to constitute functional loss, pain must affect some aspect of the normal working movements of the body, such as excursion, strength, speed, coordination and endurance. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Although pain may cause functional loss, pain itself does not constitute functional loss and is merely one factor to be considered when evaluating functional impairment. See id. However, 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). Once the evidence has been assembled in the record, it is the Board's responsibility to evaluate the evidence. See 38 U.S.C. § 7104(a). The Board shall consider all competent lay and medical evidence of record, analyze the credibility and probative value of the evidence, and provide reasons for rejecting any favorable material evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and its credibility, a factual determination regarding its probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt, see 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, and where the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the claim in order to warrant its denial. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). Diagnostic Codes (DC) 5276 through 5284 set forth the relevant provisions for evaluating disabilities of the foot. See 38 C.F.R. § 4.71a. The Veteran's service-connected left foot disability has been evaluated as 20 percent disabling under DC 5284, which governs other foot injuries. DC 5284 provides a 10 percent evaluation for a moderate foot injury, a 20 percent evaluation for a moderately severe foot injury, and a 30 percent evaluation for a severe foot injury. See id. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for the actual loss of use of the foot, which is evidenced by the absence of any remaining effective function other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. See 38 C.F.R. § 4.63. Such determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis and may include the following: extremely unfavorable ankylosis of the knee; complete ankylosis of two major joints of an extremity; shortening of the lower extremity of 3.5 inches or more; or complete paralysis of the external popliteal nerve and consequent footdrop. See id. Depending upon the nature of the foot injury at issue, DC 5284 may also involve limitation of motion of the subtalar, midtarsal, and metatarsophalangeal joints; thus, in such cases, consideration of additional VA regulations may be required. See DeLuca, 8 Vet. App. at 205-07; see also 38 C.F.R. §§ 4.40, 4.45. 1. Left foot disability The Veteran is seeking a rating in excess of 20 percent for residuals of a fracture of the left fifth metatarsal, rated under Diagnostic Code 5284, 38 C.F.R. § 4.71a. The relevant temporal focus for this disability is one year prior to the date of receipt of the increased rating claim, so from April 27, 2005. Here, the Veteran contends that his service-connected left foot disability warrants a higher evaluation due to evidence of severe symptoms, including constant severe pain, and for the reasons set forth below, the Board agrees. After careful review, the Board finds that for the period from April 27, 2006, the evidence of record demonstrates that the Veteran's left foot disability manifests symptoms more closely approximating severe impairment, thereby warranting a 30 percent evaluation under DC 5284, but not greater, as 30 percent is the maximum rating available under DC 5284. The Veteran underwent a January 2007 VA Feet Compensation and Pension Examination. The examiner opined that there was moderate to severe functional limitation on occupational and daily activities due to the residuals of the left fifth metatarsal fracture. The effects on doing chores, shopping, exercise, traveling, are severe. The Veteran a VA Foot Conditions Disability Benefits Questionnaire (DBQ) in June 2016. The examiner confirmed a diagnosis of fracture in the left foot. He reports a throbbing pain in his left foot and that whenever he tries to stand on the left foot or whenever he sits for too long, his left foot swells up like it has fluid inside of it. He also reported that he cannot walk on his toes. The examiner reported that the Veteran’s left foot disability causes swelling, instability of station, and disturbance of locomotion. The examiner reported that the swelling and pain of the left foot would moderately limit functional ability during flare-ups or when the foot is used repeatedly over a period of time. The examiner also noted that the Veteran has a diagnosis of bilateral pes planus. It causes him swelling. The Veteran underwent a VA Foot Conditions DBQ in August 2017. The examiner confirmed a diagnosis of residuals of left 5th metatarsal fracture, degenerative arthritis in the left foot, and residuals of a gunshot wound in the left foot. The Veteran reported a throbbing pain in the left foot that is diffuse and that he has moderate pain in the foot that may increase to severe and last 4-5 hours at a time. The Veteran reported that he cannot stand or walk for prolonged periods of time and cannot do repetitive kneeling or squatting. The Veteran’s foot condition chronically compromises weight bearing. Due to his left foot disability, he has less movement than normal, weakened movement, excess fatigability, incoordination and impaired ability to execute skilled movements smoothly, pain on movement, pain on weight-bearing, pain on non weight-bearing, swelling, instability of station, disturbance of locomotion, interference with standing, and lack of endurance. The examiner opined that the Veteran’s condition impacts his ability to perform occupational tasks in that he cannot stand, walk for prolonged periods of time, or complete repetitive kneeling or squatting. The examiner noted a diagnosis of bilateral pes planus. The symptoms were pain on manipulation of the feet, and swelling on use. A July 2020 Tuskegee VA medical center record documents the Veteran’s statement that his left foot is deformed and causing him to be bedridden. The Board also notes the Veteran stated that while his left foot is becoming more deformed, his physical therapy is not available due to COVID-19. As stated above, the Veteran's service-connected left foot disability was assigned a 20 percent disability rating from April 27, 2006, under DC 5284 for moderately severe symptoms. However, after careful review, and in consideration of the foregoing evidence of the Veteran's severe functional impairment manifested by severe chronic pain, inability to stand or walk for prolonged periods, disturbance of locomotion, and extreme swelling, the Board finds that the Veteran's service-connected left foot disability warrants the maximum disability rating available under DC 5284, 30 percent, for the entire period on appeal. Generally, as stated above, where a veteran's claim involves rating the severity of a joint disability based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40, 4.45 pertaining to functional impairment must be applied in order to determine whether the disability at issue manifested weakened movement, excess fatigability, or incoordination. See DeLuca, 8 Vet. App. at 205-07. However, in this case, because the Board has awarded the Veteran DC 5284's maximum schedular rating of 30 percent, consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45 and accompanying case law is not required, as any additional finding of painful motion will not result in a higher rating. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, the Board also finds that a preponderance of the lay and medical evidence of record does not support a finding that the Veteran has experienced the actual loss of use of his left foot, as although he experiences severe and constant pain, he has retained the ability to stand for short periods of time, to walk for short distances, and to otherwise retain some ability to use his left foot. See 38 C.F.R. § 4.63. Accordingly, the Board finds that a 40 percent disability rating under DC 5284 for loss of use of the Veteran's left foot is not warranted in this case. In addition, the Board has also considered whether the Veteran's service-connected left foot disability warrants the assignment of any additional disability ratings under other diagnostic codes at any point during the period on appeal. See Schafrath, 1 Vet. App. at 595. However, because the evidence of record contains no evidence of bilateral weak foot (DC 5277), acquired claw foot/pes cavus (DC 5278), anterior metatarsalgia (DC 5279), unilateral hallux valgus (DC 5280), unilateral, severe hallux rigidus (DC 5281), hammer toe (DC 5282), or malunion or nonunion of the tarsal or metatarsal bones (DC 5283), the Board finds that no additional disability ratings are warranted in this case. See 38 C.F.R. § 4.71a. The Board has contemplated a separate rating for flat foot (Diagnostic Code 5276) due to the Veteran’s diagnosis reflected in the June 2016 and August 2017 VA examinations. However, the examiner at that time observed that the Veteran’s condition caused no symptomatology separate and distinct from the pain caused by the residuals of the fracture in the left foot. Both the June 2016 and August 2017 VA examiners noted the symptoms to be swelling, which is also what the examiners noted as a symptom of the residuals of left 5th metatarsal fracture. Thus, as the symptoms of the flat feet (pain and swelling) were adjudged indistinguishable from the symptoms of the Veteran’s residuals of left 5th metatarsal fracture, they are contemplated in the determination that the overall severity of the Veteran’s left foot disability is severe. Consequently, those symptoms are already compensated in the newly assigned 30 percent rating, and to provide separate ratings for pes planus would be pyramiding and impermissible. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2019) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Accordingly, in consideration of the foregoing evidence and resolving all reasonable doubt in the Veteran's favor, the Board finds that a 30 percent rating for the Veteran's service-connected left foot disability under DC 5284 is warranted for the entire period on appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 1. – 5. The claims for entitlement to service connection for a right shoulder disorder, bilateral hip disorder, and a bilateral ankle disorder, are remanded. Based on the July 2018 Board remand, secondary service-connection etiology opinions were obtained in October 2020 for the Veteran’s right shoulder disorder, bilateral hip disorder, and bilateral ankle disorder service connection claims. However, in June 2019, the United States Court of Appeals for Veterans Claims (the Court) issued a decision in Ward v. Wilkie, which affects the Veteran's claims. 31 Vet. App. 233 (2019). In Ward, the Court held that secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions... regardless of its permanence." Id. at 239. Upon review of the opinion, the Board finds that the October 2020 etiology opinions do not comport with the holding in Ward. Therefore, upon remand new etiology opinions that comport with the holding in Ward must be obtained. 6. Entitlement to service connection for a right foot disability, to include arthritis, to include as due to service-connected residuals of a fracture of the left fifth metatarsal, is remanded. Per the July 2018 Board remand, a new VA examination and etiology opinion was obtained for this claim in October 2020. Unfortunately, upon review, the Board finds that this opinion is inadequate to adjudicate the claim. An adequate medical examination “must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions” and must “provide sufficient detail for the Board to make a fully informed evaluation of whether direct service connection is warranted.” Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, in the October 2020 VA opinion, the examiner opined that the Veteran’s gunshot wound on his right foot, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In the stated rationale section of the opinion, the examiner cited medical literature; however, he failed to tie the literature with the facts of the case, to include how the literature ties in with the facts of the Veteran’s specific case. Therefore, the examiner’s conclusory statement that “while the veteran may have experienced temporary exacerbation (pain) in the right foot while on active duty, there is no evidence the condition was caused over permanently aggravated beyond its natural course by military service” is not substantiated. See October 2020 VA medical opinion. Moreover, in opining that the gunshot wound residuals were clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, it does not appear that the examiner took into account the Veteran’s multiple lay statements that in 1981, while in service, at Cherry Point, N.C., the Veteran was carrying a 500lb tool chest and dropped it on both of his feet. See November 1982 Veteran’s Statement; December 1996 VA Examination (Veteran reported that in service, a large tool chest fell across his feet and he fractured the fifth metatarsal bilaterally); January 2007 VA Compensation Examination (Reported that in the mid-1970s he was working on a vehicle and a tool chest fell on both feet). Secondly, the Veteran has also asserted that his right foot disability is secondary to his service-connected left foot disability. Upon review of the secondary service opinion, the Board finds that the October 2020 etiology opinion does not comport with the holding in Ward. Therefore, upon remand, a new etiology opinion that comport with the holding in Ward must be obtained. The Board also notes that the Veteran stated that his service-connected left foot caused him to stumble and break the right foot, which is now giving him serious problems, and that we should look at records from Dr. Ken Taylor. See July 2012 Veteran’s Statement (says to look at records from Dr. Ken Taylor); see also September 2009 Veteran’s Statement (He also stated that he was in crutches with a broken right foot because his service-connected left foot and left knee gave out from under him and caused him to struggle and try to catch his balance and that that is when his right foot snapped and broke). These records, or any records showing a broken right foot, are not in the claims file; therefore, the Regional Office should attempt to obtain them and associate them with the record. 7. Entitlement to an earlier effective date prior to the assigned effective date of April 27, 2006 for residuals of a left fifth metatarsal fracture is remanded. To date, the AOJ has not provided an SOC for the issue of entitlement to an earlier effective date prior to the assigned effective date of April 27, 2006 for residuals of a left fifth metatarsal fracture, now rated at 30 percent. Accordingly, remand is necessary to afford the Veteran an SOC pertaining to the issue. Manlicon v. West, 12 Vet. App. 238 (1999). 8. & 9. Entitlement to SMC and TDIU are remanded. As a decision on the other issues being remanded could significantly impact a decision on the issues of TDIU and SMC, the issues are inextricably intertwined. A remand of the claims is required. The matters are REMANDED for the following action: 1. With the assistance of the Veteran, obtain any outstanding VA and private treatment records, to include any records from Dr. Ken Taylor indicating that the Veteran broke his right foot. See July 2012 Veteran’s Statement (The Board also notes that the Veteran stated that his service-connected left foot caused him to stumble and break the right foot, which is now giving him serious problems, and that we should look at records from Dr. Ken Taylor); see also September 2009 Veteran’s Statement (He also stated that he was in crutches with a broken right foot because his service-connected left foot and left knee gave out from under him and caused him to struggle and try to catch his balance and that that is when his right foot snapped and broke). These records, or any records showing a broken right foot, are not in the claims file; therefore, the Regional Office should attempt to obtain them and associate them with the record. 2. Obtain a new etiology opinion from a new examiner to assess the nature and etiology of the Veteran's right shoulder disorder. Regardless of who offers the opinion, if the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. If the examiner requires an examination, in light of the COVID-19 epidemic, all flexibility and understanding in affording the Veteran any warranted examination should be given to the Veteran. After reviewing the claims folder and examining the Veteran, for the Veteran's right shoulder disorder, the examiner is specifically instructed to provide the following information: (a) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's right shoulder disorder BEGAN IN or is related to his time in the service, yes or no? (b) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's right shoulder disorder was: (i) CAUSED BY HIS SERVICE-CONNECTED residuals of a fracture of the left fifth metatarsal or the service-connected status-post left shoulder separation, (ii) any other service-connected disability, or (iii) medicine taken for his other service-connected disabilities, yes or no? (c) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's right shoulder disorder underwent any incremental increase in disability, regardless of its permanence, due to: (i) the service-connected residuals of a fracture of the left fifth metatarsal or the service-connected status-post left shoulder separation, (ii) any other service-connected disability, (iii) medicine taken for his other service-connected disability, yes or no? 3. Obtain a new etiology opinion from a new examiner to assess the nature and etiology of the Veteran's bilateral hip disorder. Regardless of who offers the opinion, if the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. If the examiner requires an examination, in light of the COVID-19 epidemic, all flexibility and understanding in affording the Veteran any warranted examination should be given to the Veteran. After reviewing the claims folder and examining the Veteran, for the Veteran's bilateral hip disorder, the examiner is specifically instructed to provide the following information: (a) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's bilateral hip disorder BEGAN IN or is related to his time in the service, yes or no? (b) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's bilateral hip disorder was: (i) CAUSED BY HIS SERVICE-CONNECTED residuals of a fracture of the left fifth metatarsal or the service-connected status-post left shoulder separation, (ii) any other service-connected disability, or (iii) medicine taken for his other service-connected disabilities, yes or no? (c) Is it "at least as likely as not (50 percent probability or greater)" that the Veteran's bilateral hip disorder underwent any incremental increase in disability, regardless of its permanence, due to: (i) the service-connected residuals of a fracture of the left fifth metatarsal or the service-connected status-post left shoulder separation, (ii) any other service-connected disability, (iii) medicine taken for his other service-connected disability, yes or no? 4. Obtain a new etiology opinion from a new examiner to assess the nature and etiology of the Veteran’s bilateral ankle disorder. Regardless of who offers the opinion, if the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. If the examiner requires an examination, in light of the COVID-19 epidemic, all flexibility and understanding in affording the Veteran any warranted examination should be given to the Veteran. After reviewing the claims folder and examining the Veteran, for the Veteran’s bilateral ankle disorder, the examiner is specifically instructed to provide the following information: (a) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s bilateral ankle disorder BEGAN IN or is related to his time in the service, yes or no? (b) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s bilateral ankle disorder was: (i) CAUSED BY HIS SERVICE-CONNECTED residuals of a fracture of the left fifth metatarsal or the service-connected status-post left shoulder separation, (ii) any other service-connected disability, or (iii) medicine taken for his other service-connected disabilities, yes or no? (c) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s bilateral ankle disorder underwent any incremental increase in disability, regardless of its permanence, due to: (i) the service-connected residuals of a fracture of the left fifth metatarsal or the service-connected status-post left shoulder separation, (ii) any other service-connected disability, (iii) medicine taken for his other service-connected disability, yes or no? 5. After step 1 is completed, obtain an etiology opinion to determine the nature and etiology of the Veteran’s right foot disability, to include arthritis. Whether the Veteran should undergo a new examination for the opinion is up to the discretion of the examiner. If the examiner requires an examination, in light of the COVID-19 epidemic, all flexibility and understanding in affording the Veteran any warranted examination should be given to the Veteran. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should elicit a complete history, the pertinent details of which should be included in the examination report. The examiner should provide an opinion addressing the following: a) Is there CLEAR AND UNMISTAKABLE EVIDENCE that any current right foot disability pre-existed his active duty for training? b) If so, is there CLEAR AND UNMISTAKABLE EVIDENCE (i.e., undebatable) that the Veteran’s preexisting right foot disability was not aggravated, worsened beyond the natural progress of the disability during his service (i.e., that it clearly and unmistakably did not increase or that any increase was clearly and unmistakably due to the natural progress of the disease).? c) the examiner must also provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any current right foot disability had onset in service or is directly linked to the Veteran’s time on active duty for training. d) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s right foot disability, to include arthritis, BEGAN IN or is related to his time in the service, yes or no? The examiner is specifically instructed to take into account the Veteran’s multiple lay statements that in 1981, while in service, at Cherry Point, N.C., the Veteran was carrying a 500lb tool chest and dropped it on both of his feet. See November 1982 Veteran’s Statement; December 1996 VA Examination (Veteran reported that in service, a large tool chest fell across his feet and he fractured the fifth metatarsal bilaterally); January 2007 VA Compensation Examination (Reported that in the mid-1970s he was working on a vehicle and a tool chest fell on both feet). e) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s right foot disability, to include arthritis, was: (i) CAUSED BY HIS SERVICE-CONNECTED residuals of a fracture of the left fifth metatarsal, (ii) any other service-connected disability, or (iii) medicine taken for his other service-connected disabilities, yes or no? f) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s right foot disability, to include arthritis, underwent any incremental increase in disability, regardless of its permanence, due to: (i) the service-connected residuals of a fracture of the left fifth metatarsal, (ii) any other service-connected disability, (iii) medicine taken for his other service-connected disability, yes or no? The examiner is specifically instructed to consider the Veteran’s lay statements. The Veteran has stated that he developed right foot pain in approximately 1986 due to favoring his left foot and has had pain in the right foot ever since. See August 2017 VA Foot Conditions DBQ. He has previously stated that he experiences pain and paralysis in the right foot at times and has no feeling at times and that the weakness in his right foot has caused me to fall many times and he has fallen and hurt himself many times due to the weakness. See April 1984 Veteran’s Statement. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST "CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO." SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to SMC and a TDIU. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. 7. Furnish the Veteran and his representative an SOC regarding the issue of entitlement to an earlier effective date prior to the assigned effective date of April 27, 2006 for residuals of a left fifth metatarsal fracture. Advise him of the time limit for perfecting the appeal of this claims and that the issue will NOT be returned to the Board for appellate consideration following the issuance of the SOC UNLESS he perfects his appeal WITH THE SUBMISSION OF A VA FORM 9. 8. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 9. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, Associate 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.