Citation Nr: 21039875 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 08-36 937A DATE: July 1, 2021 REMANDED Entitlement to an increased evaluation in excess of 10 percent for a right foot disability prior to July 19, 2016 is remanded. Entitlement to an increased evaluation in excess of 10 percent for a left foot disability, exclusive of periods of temporary total evaluation, prior to July 19, 2016 is remanded. Entitlement to an increased evaluation in excess of 20 percent for a right foot disability from July 19, 2016 is remanded. Entitlement to an increased evaluation in excess of 20 percent for a left foot disability from July 19, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1982 to July 1982 and from November 1988 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) from April 2007, November 2007, and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In September 2011, the Veteran testified during a hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of the hearing is of record. On January 25, 2021, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Remand (JMR) that remanded the issues of increased ratings in excess of 10 percent for the left foot and right foot disabilities prior to July 19, 2016, and in excess of 20 percent thereafter, back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court's remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated February 4, 2021, notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative did not submit any new evidence during this period. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). The substance of the Court's JMR will be discussed further in the remand section below. The Board had remanded the issues on appeal for additional development in June 2014 and May 2018. However, as the CAVC has vacated the Board's April 2020 decision in its January 2021 JMR discussed above, the issues on appeal must be remanded again. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). The Veteran was awarded a TDIU in an August 2019 rating decision effective from August 1, 2009, the first date of his schedular eligibility. The Veteran has already been awarded multiple instances of SMC on the basis of his orthopedic disabilities and was awarded SMC housebound as well on that same August 2019 rating decision. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § § 3.350(a), (b), (i). As such, the Board will not further infer the issues of further entitlement to TDIU or additional entitlement to SMC at this time. 1. Entitlement to an increased evaluation in excess of 10 percent for a right foot disability prior to July 19, 2016 is remanded. 2. Entitlement to an increased evaluation in excess of 10 percent for a left foot disability, exclusive of periods of temporary total evaluation, prior to July 19, 2016 is remanded. 3. Entitlement to an increased evaluation in excess of 20 percent for a right foot disability from July 19, 2016 is remanded. 4. Entitlement to an increased evaluation in excess of 20 percent for a left foot disability from July 19, 2016 is remanded. The Veteran's foot disabilities have a long and complicated history. By way of background, the Veteran's right foot and left foot disabilities were originally service connected together in a single 10 percent rating in a March 1993 rating decision based on a diagnosis of osteoarthritis in each foot, confirmed by X-ray from May 1992. The Veteran has undergone a cheilectomy with intra-joint tissue resection on the right foot in May 1992 and the left foot in November 1999. Further surgery was done on the metatarsal-phalangeal joint of the left foot in November 2004, with subsequent physical therapy that was not completely successful. Based in part on his hospitalizations for further foot surgery in March and April 2005, the Veteran filed a claim for an increased rating for his foot disabilities, and in a June 2005 rating decision, the RO split each foot disability into its own rating, with diagnoses of osteoarthritis for each foot leading to a separate evaluation of 10 percent for each foot under Diagnostic Code 5010, arthritis due to trauma, effective from the date of claim of May 1, 2005. In a November 2007 rating decision, the RO continued the 10 percent ratings for each foot based on osteoarthritis under Diagnostic Code 5010. The Veteran filed a notice of disagreement that same month with the November 2007 rating decision, asserting that the ratings did not correspond to the actual level of disability for each foot. In a November 2016 rating decision, the RO increased the rating of each foot to 20 percent effective from July 19, 2016, the date of the VA examination that found cause for the higher ratings. In addition, the RO now classified the Veteran's foot disabilities under Diagnostic Code 5284. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. Here, as the previous rating decisions for the Veteran's foot disabilities had gone final without notice of disagreement, the Board will consider the Veteran's increased rating claims for each foot from that November 2007 rating decision. "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)). The Board notes previous appeals for temporary total evaluations for the left foot, which have been previously adjudicated and which are no longer on appeal. Throughout the period on appeal, the Veteran has endorsed persistent pain in the right foot and left foot, as well as pain on walking and trouble with weight bearing, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's right foot and left foot disabilities are each currently rated under Diagnostic Code 5284, governing other foot injuries. See 38 C.F.R. §§ 4.20, 4.71a; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (Diagnostic Code 5284 only applies to foot disabilities for which there is not already a specific Diagnostic Code). Diagnostic Code 5284 for "foot injuries, other" provides for a 10 percent rating for a moderate foot disability, a 20 percent rating for moderately severe foot disability, and the maximum 30 percent rating for severe foot disability. A 40 percent rating is assigned for actual loss of use of the foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note. Descriptive words such as "moderate," "moderately severe," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. In addition, the Veteran's right and left foot each have been found to have arthritis, as diagnosed by X-ray during regular VA treatment in May 1992. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010, traumatic arthritis, substantiated by X-ray findings, is rated on limitation of motion of affected parts, as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate DCs, a 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. See also Petitti v. McDonald, 27 Vet. App. 415 (2015). Because DC 5003 requires that "satisfactory evidence of pain" be "objectively confirmed," a Veteran's testimony, alone, is not enough. For the minimum compensable rating for motion which is painful but not actually limited to a compensable degree, a claimant's bare statement is not satisfactory evidence of painful motion. Petitti v. McDonald, 27 Vet. App. 415, 427 (2015) (holding that painful motion may be "objectively confirmed" by either a clinician, including a claimant's assertion of painful joints that is confirmed by a clinician's statement there is a history of "recurrent" joint pain or a layperson who witnessed the Veteran experience difficulty walking, standing, or sitting, or display a facial expression, such as wincing, indicative of pain). In other words, satisfactory lay evidence of painful motion also includes lay descriptions from other than the Veteran of painful motion; lay observations of witnesses of painful motion, lay statements of observed visible behavior or facial expressions during painful motion, as well as lay reports of difficulty walking, standing, sitting, or undertaking other activity. Id. at 429. In the September 2011 Board hearing before the undersigned VLJ, the Veteran testified to a worsening of his bilateral foot disabilities and related scar, stating that he has had multiple surgeries on the bones of his feet and currently has a sticking pain in his left foot since the last surgery, and he essentially has been told by medical personnel that he has a screw or similar piece of hardware in his foot causing the pain. It has been recommended that he have it removed. The Veteran testified he has to soak and massage his feet multiple times a week, sleep with his feet elevated, wear larger shoes and take pain medication. He cannot walk over a block and a half or stand more than 10 to 15 minutes. VA provided a examination for the Veteran's feet in July 2016. This examiner noted bilateral degenerative joint disease but with moderately severe symptoms. X-rays again showed osteoarthritis in each foot. Constant bilateral pain was noted, but no pes planus, hammertoe, or hallux valgus/rigidus. The examiner considered that the bilateral foot condition compromised weight-bearing. Less movement than normal, disturbance of locomotion, and pain and interference with standing were noted. The Veteran received a VA examination for his feet in June 2019. This examiner diagnosed osteoarthritis of each foot but no other foot condition. The Veteran reported increased pain in each foot, with swelling, with the pain locus near the ball of the foot for each. The Veteran noted that the pain affects his everyday life in that he can't walk long distances and cannot stand for long with pain. Pain on weight bearing, pain on movement, disturbance of locomotion, and interference with standing were noted. The Veteran reported occasional use of a cane held in the right hand to assist locomotion. With regard to Deluca and Sharp criteria, the examiner noted that during flare-ups that the Veteran would be unable to dorsally extend either foot more than 5 degrees and also not to be able to palmar flex bilaterally more than 5 degrees. This examiner considered the Veteran's bilateral feet symptoms to be moderately severe, with no further explanation of the terms used in the examination report. On January 25, 2021, the CAVC issued a Joint Motion for Remand which vacated the April 2020 Board decision that denied entitlement to increased ratings in excess of 10 percent for the left foot and right foot disabilities prior to July 19, 2016, and in excess of 20 percent thereafter, and remanded back to the Board for reconsideration consistent with the terms of the motion. No. 20-4716, 2020 U.S. App. Vet. Claims (Jan. 25, 2021) (unpublished). The CAVC had two general concerns. First, it noted the Board had previously used the date of July 19, 2016, as the effective date of new, increased ratings for the Veteran's right foot and left foot disabilities, but the CAVC noted the Board had failed to explain why this date was sufficient for the increased ratings effective date, despite the Board's discussion that the date was that of a VA examination that established the basis for the increased ratings for the right foot and left foot disabilities. Second, the CAVC noted the Board relied on Diagnostic Code 5284 to assess the Veteran's right foot and left foot disabilities. The CAVC noted from 38 C.F.R. § 4.71a that Diagnostic Code 5284 for "foot injuries, other" provides for a 10 percent rating for a moderate foot disability, a 20 percent rating for moderately severe foot disability, and the maximum 30 percent rating for severe foot disability. A 40 percent rating is assigned for actual loss of use of the foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note. However, the CAVC also noted that descriptive words such as "moderate," "moderately severe," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. 38 C.F.R. § 4.6. The CAVC called upon the Board to articulate the standards it used in determining whether the Veteran's foot was moderate, moderately severe, or severe. Here, the CAVC has questioned the criteria behind the descriptors used by medical examiners in evaluating the Veteran's foot disabilities. The Board may only consider independent medical evidence of record to support its findings and may not provide its own medical conclusion in the guise of a Board opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (finding that the Board improperly made a medical determination as to the relative severity, common symptomatology, and usual treatment of an ACL injury without citing to any independent medical evidence to corroborate its finding). As such, then, the Board must remand for a medical opinion as to the nature and severity of the Veteran's foot disabilities in the pertinent periods. In Chotta v. Peake, the CAVC explained that the duty to assist requires VA to assess whether a disability can be rated based upon the available evidence. 22 Vet. App. 80, 84 (2008). If a disability rating "cannot be awarded based on the available evidence," VA must determine whether a medical opinion, including a retrospective opinion, "is necessary to make a decision on the claim." Id. at 85. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with the claims file. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. After completion of the above, schedule the Veteran for a VA examination with a VA medical professional with expertise in orthopedics to determine the current nature and severity of his foot disabilities, to include all orthopedic and neurological manifestations. The claims folder must be made available to the examiner in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner, to include appropriate imaging, should be conducted. The examiner should inquire as to periods of flare-ups, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate informationi.e. frequency, duration, characteristics, severity, or functional lossregarding his flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. When considering the evaluation, the examiner is to carefully consider all lay statements of record, VA treatment records, and private treatment records and evaluations, to include retrospectively as necessary. The examiner should view the Veteran as a reliable historian as to his service and his reports of his activities and symptoms in and since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Pursuant to the CAVC's remand in this case, the examiner is specifically requested to explain his/her reasoning behind any assessment of the Veteran's foot disabilities that go to the evaluation under the ratings criteria, to include the differences between "moderate," "moderately severe," and "severe" of the Veteran's foot disabilities. 3. Thereafter, readjudicate the issues on appeal. Attention is invited to the revised 38 C.F.R. § 4.71a criteria for musculoskeletal disabilities, and the Veteran should receive the benefit of whatever criteria, old or revised, that provides a greater rating. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.