Citation Nr: 21029529 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-18 936 DATE: May 13, 2021 ISSUES 1. Entitlement to service connection for a right hand disability. 2. Entitlement to service connection for a respiratory disability. 3. Entitlement to service connection for chronic headaches, to include as secondary to cervical spine disability. 4. Entitlement to a rating higher than 10 percent for bilateral heel spurs and plantar fasciitis. REMANDED Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for chronic headaches, to include as secondary to cervical spine disability, is remanded. Entitlement to a rating higher than 10 percent for bilateral heel spurs and plantar fasciitis is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1982 to January 2004. Historically, in October 2019 the Board denied the claims on appeal, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2020 the Court issued an order that vacated the Board decision in regards to these issues and remanded the claims for compliance with a Joint Motion for Partial Remand (JMPR). The Veteran did not challenge the Board's grant of his claims of entitlement to service connection for a cervical spine disability and entitlement to service connection for a right shoulder disability. The Board finds that additional evidentiary development is required before adjudication of this appeal. In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court's decision in Clemons, the Board has re-characterized the issue on appeal as entitlement to service connection for a right hand disability. This will provide the most potentially favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. Pursuant to the JMPR, the Board notes that in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. Lexis 8467 (Fed. Cir. Apr. 3, 2018), the Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Veteran asserts that in the September 2014 VA examination that he reported experiencing occasional right thumb numbness along with weakness/tingling sensation to the 2nd and 3rd fingers. He also presented with a Velcro strap wrapped around his right wrist and stated that he used it on a regular basis for support while at work. Moreover, neuropathy of the right thumb was noted in the September 2014 examination. The Veteran also argues that his headaches should be considered under Saunders; or alternatively, that he has a headache disability as evidenced by June 2015 treatment notes that showed that he complained of daily, chronic headaches and an October 2019 private medical record indicating that he sought treatment for headaches. Pursuant to Saunders and Clemons, the Board finds that an addendum opinion should be obtained on remand to address whether his right hand pain and headache pain alone results in functional impairment, to address the etiology of all right hand disabilities diagnosed during the pendency of this appeal, and to determine if the Veteran has a headache disability in light of the aforenoted prior complaints. In regards to the claim for service connection for a respiratory disability, pursuant to the JMPR, the Board notes that the September 2014 examiner stated that there were no findings in the Veteran's service medical record indicating treatment for a diagnosis of any respiratory disease condition; however, during the Veteran's separation physical examination in November 2003, there was a noted history of severe acute respiratory syndrome (SARS). The Veteran argued that the 2014 VA medical opinion did not address whether the Veteran's current respiratory disorder was due to his active service, including his assertion that "he had been experiencing recurrent episodes of [shortness of breath] due to running since 2003." On remand, an addendum opinion should be obtained that addresses whether it is at least as likely as not (50 percent or better probability) that the Veteran's respiratory disabilities diagnosed during the pendency of this claim are related to service, including as due to running and his case of SARS. In response to the Board's remand, the Veteran was afforded a VA-contracted examination in September 2020 in which physical examination showed evidence of pain during active range of motion; pain during weight-bearing; and pain during nonweight-bearing; however, range of motion in degrees was not provided. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant's joint disability and account for painful motion. However, compelled by § 4.59's place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. As the September 2020 examination report did not provide all of the information specified by Correia and Sharp, the claim must be remanded for new VA examination to obtain the information necessary to properly adjudicate this claim. The matters are REMANDED for the following action: 1. Provide access to the electronic claims file to the September 2014 examiner or an appropriate substitute if this individual is not available. An examination should be performed if deemed necessary by the examiner providing the requested opinion. Based on review of the files, the examiner should address the following: a) opine whether it is at least as likely as not (50 percent or better probability) that the Veteran's right hand disabilities diagnosed during the pendency of this claim to specifically include discussion of his reports of occasional right thumb numbness along with weakness/tingling sensation to the 2nd and 3rd fingers; mild degenerative changes; and neuropathy of the right thumb are related to service. b) opine whether it is at least as likely as not (50 percent probability or greater) that any right hand pain alone had onset in service or is otherwise etiologically related to service. The examiner should state whether any pain claimed by the Veteran is supported by adequate pathology, and if so, whether it is as likely as not (50 percent or greater) whether such pain symptomatology represents a functional loss. The rationale for all opinions expressed must be provided. 2. Provide access to the electronic claims file to the September 2014 examiner or an appropriate substitute if this individual is not available. An examination should be performed if deemed necessary by the examiner providing the requested opinion. Based on review of the files, the examiner should address the following: Opine as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's respiratory disabilities diagnosed during the pendency of this claim are related to service, including as due to running and his case of SARS. The rationale for all opinions expressed must be provided. 3. Provide access to the electronic claims file to the September 2014 examiner or an appropriate substitute if this individual is not available. An examination should be performed if deemed necessary by the examiner providing the requested opinion. Based on review of the files, the examiner should address the following: a) opine as to whether the Veteran has at any time during the pendency of this claim had a headache disability. The examiner should address the June 2015 treatment notes that showed that he complained of daily, chronic headaches and the October 2019 private medical record indicating that he sought treatment for headaches. b) opine as to whether it is at least as likely as not (50 percent or better probability) that any diagnosed headache disability is related to service. c) opine whether it is at least as likely as not (50 percent probability or greater) that any headache pain alone had onset in service or is otherwise etiologically related to service. The examiner should state whether any pain claimed by the Veteran is supported by adequate pathology, and if so, whether it is as likely as not (50 percent or greater) whether such pain symptomatology represents a functional loss. The rationale for all opinions expressed must be provided. 4. The Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine the current degree of severity of his service-connected bilateral heel spurs and plantar fasciitis. The electronic claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. All testing deemed necessary must be conducted and results reported in detail. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. A full and complete rationale for any opinions expressed is required. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.