Citation Nr: 21040281 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-61 823 DATE: July 3, 2021 ORDER A 10 percent rating, but no higher, for hallux valgus of the right foot (previously characterized as bunion of the right great toe) is granted. REMANDED Entitlement to a rating in excess of 20 percent for lumbar strain with intervertebral disc disease prior to August 4, 2015 and in excess of 10 percent thereafter, to include whether the reduction to 10 percent from August 4, 2015 was proper, is remanded. FINDING OF FACT During the period on appeal, the Veteran's hallux valgus disability has been manifested by actually painful joints of the right foot. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating for hallux valgus of the right foot have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5280; Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (providing that Section 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or misaligned joints or periarticular regions, regardless of whether the Code under which the disability is being evaluated is predicated on range of motion measurements). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2009 to December 2012. These matters come before the Board of Veterans' Appeals (the Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), that, in pertinent part, recharacterized the prior bunion of the great toe disability to hallux valgus of the right foot and continued a noncompensable rating, and essentially, continued a 20 percent rating for the lumbar spine disability prior to August 4, 2015, and reduced the disability rating from 20 to 10 percent, effective August 4, 2015. In a January 2019 rating decision, the RO continued a noncompensable rating for hallux valgus of the right foot. The Veteran was scheduled to testify at a hearing before the Board on September 2019. An August 2019 letter notified the Veteran of the date, time, and location of the hearing. However, he did not appear for this hearing and has not provided a reason for his failure to appear or requested that the hearing be rescheduled. Accordingly, the Board will proceed with appellate review. See 38 C.F.R. § 20.704 (d) (providing that failure to appear for a scheduled hearing will be processed as though the request for a hearing had been withdrawn). Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Entitlement to a compensable rating for hallux valgus of the right foot (previously claimed as bunion of the right great toe) is granted. The Veteran generally seeks entitlement to a compensable rating for his service-connected hallux valgus of the right foot. The Veteran's right foot hallux valgus disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5280. Under Diagnostic Code 5280, unilateral hallux valgus will be rated as 10 percent disabling when it requires surgical operation with resection of the metatarsal head or if it is severe in nature, which is considered equivalent to amputation of the great toe. See 38 C.F.R. § 4.71a, Diagnostic Code 5280. The Veteran underwent a VA examination in August 2015. Upon examination, he was diagnosed with hallux valgus in both feet, with mild or moderate symptoms. On examination, the Veteran described experiencing increased bilateral foot pain and increased lateral bunion pain. The Veteran reported significant bilateral foot pain after prolonged standing and takes off his shoes to drive home from work due to this. The examiner noted that the Veteran has pain in both feet with use which is accentuated on manipulation. The examiner found that pain on weightbearing contributed to additional functional loss. During periods of flare-up and repetitive use, prolonged standing results in increased bilateral foot pain. VA treatment records from the period on appeal generally reflect ongoing medical treatment for hallux valgus. Regarding the assigned rating for the Veteran's right foot hallux valgus, initially, the Board notes that the record does not reflect that the Veteran has undergone an operation with resection of the metatarsal head of the right foot. In addition, the evidence does not demonstrate that the Veteran's hallux valgus disability could be characterized as "severe" in nature, equivalent to amputation of the right great toe. Accordingly, the schedular criteria for assigning initial 10 percent ratings for hallux valgus of the right foot under Diagnostic Code 5280 are not met. Nonetheless, the Board finds that, when reasonable doubt is resolved in favor of the Veteran, the Veteran is entitled to an initial 10 percent rating for his right foot hallux valgus under the provisions of 38 C.F.R. § 4.59. As noted above, 38 C.F.R. § 4.59 provides that the intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The United States Court of Appeals for Veterans Claims (Court) further explained that 38 C.F.R. § 4.59 "is one of several regulations that precede the rating schedule for the musculoskeletal system and explain how to arrive at proper evaluations under the diagnostic codes appearing in the disability rating schedule." Petitti v. McDonald, 27 Vet. App. 415, 424 (2015). In Petitti, the Court held that "[u]nder [38 C.F.R.] § 4.59, the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint." Id. at 425. Moreover, in Southall-Norman v. McDonald, the Court found that "the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic codes under which the disability is being evaluated is predicated on range of motion measurements." 28 Vet. App. 346, 354 (2016). In light of the above, the Board finds that 38 C.F.R. § 4.59 applies in the instant case and can serve as a basis for awarding the Veteran a compensable rating for right foot hallux valgus. In this regard, the Board observes that "hallux valgus" is generally defined as "angulation of the great toe toward the other toes, where the great toe may ride under or over the other toes." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 818 (32nd ed. 2012). Accordingly, the Board finds that the Veteran's disability picture contemplates involvement of joints of the right foot. Further, the evidence suggests that the Veteran's right foot hallux valgus disability has resulted in actually painful joints of the foot. At the August 2015 VA examination, the Veteran was found to have bilateral foot pain on weightbearing, manipulation, and with prolonged walking. As such, considering the intent of the rating schedule as set forth in 38 C.F.R. § 4.59, and extending the benefit of the doubt to the Veteran, the Board finds that the Veteran has actually painful joints of the right foot due to his hallux valgus disability, and, therefore, is entitled to the minimum compensable rating for the right foot. See 38 C.F.R. § 4.59. As a final matter, the Board notes that 10 percent is the maximum schedular rating under Diagnostic Code 5280; therefore, an even higher rating is not for application. Moreover, since the Veteran's hallux valgus disability is specifically contemplated by Diagnostic Code 5280, a higher rating is also not warranted under any other diagnostic code. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (holding that a condition specifically listed in the rating schedule may not be rated by analogy under another diagnosis code). Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that an initial 10 percent rating, but not higher, for the Veteran's right foot hallux valgus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for lumbar strain with intervertebral disc disease prior to August 4, 2015 and in excess of 10 percent thereafter is remanded. The Veteran underwent a VA Back Conditions examination in August 2015. The examiner did not conduct passive range of motion testing, nor did the examiner test pain on non-weightbearing. The examiner also stated that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit the Veteran's functional ability during periods of flare-up or on repetitive use. However, the examiner failed to provide a reason for why an estimate could not be provided based on information procured from the Veteran or other medical evidence of record. The Board finds the August 2015 examination and opinion to be inadequate. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Because the August 2015 VA medical opinion is insufficient to fairly adjudicate the Veteran's claim, remand for an adequate medical opinion is necessary. On remand, the Veteran should be afforded a new VA examination by a physician with the appropriate expertise to assess the nature and etiology the Veteran's lumbar spine disability. In Correia, the Court held that, pursuant to 38 C.F.R. § 4.59, an adequate VA joint examination must include testing the joint for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with the range of motion of the opposite undamaged joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must estimate the functional loss that would occur during flare-ups. Specifically, examiners must name the precipitating and alleviating factors for the flare-ups and estimate, per the Veteran's reports, the extent to which flare-ups affect functional impairment. The Board notes that in Sharp, the Court, citing Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010), held that an examiner may not decline to provide an opinion on the basis of speculation unless the examiner has "considered all procurable and assembled data" and offered a basis for this conclusion. 29 Vet. App. at 32. Moreover, it must be apparent that the inability to provide an opinion without speculation reflects "the limitation of knowledge in the medical community at large," as opposed to a limitation of the individual examiner (lack of expertise, insufficient information, or unprocured testing). Id. In light of the above, on remand, the VA examiner must also ensure compliance with the Court's guidance in Sharp. The Board reminds the examiner that failure to comply with the requirements outlined by the Court in Correia and Sharp renders an examination report inadequate and will result in further remand of the Veteran's claims. Accordingly, the matter is REMANDED for the following action: Schedule the Veteran for a VA examination with a VA physician (M.D.) of appropriate expertise to fully assess the current severity of his lumbar spine disability. The claims file, including a copy of this REMAND, must be made available to the examiner and it should be reviewed in its entirety. The examiner must elicit a full history of symptoms from the Veteran. Thereafter, the examiner is asked to provide a fully-articulated response to the following: (a) Report the extent of the Veteran's symptoms in accordance with VA rating criteria. (b) Conduct range of motion testing of the lumbar spine, specifically noting the motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner must indicate the point at which pain begins. (d) State whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and other evidence of record, the examiner must provide an opinion estimating any additional degrees of limitation of range of motion caused by functional loss during a flare-up. If the examiner is unable to do so, s/he must indicate why. It should be noted that VA's Clinicians Guide specifically advises examiners to procure the information necessary from Veterans to render an opinion regarding flare-ups. A full and complete explanatory rationale must be provided for any opinions offered. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must indicate whether this inability is due to a lack of knowledge among the medical community or based on a lack of procurable information. The Board reminds the examiner that failure to comply with the directives outlined herein renders an examination report inadequate and will result in further remand of the Veteran's claim. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.