Citation Nr: 22015472 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 11-27 651 DATE: March 17, 2022 ORDER An initial 10 percent rating for first metatarsophalangeal joint osteoarthritis of the left foot (left foot disability) is granted. REMANDED Entitlement to an initial compensable rating for left hip degenerative joint disease (impairment of thigh) is remanded. Entitlement to an initial rating in excess of 10 percent for left hip degenerative joint disease (limitation of extension) is remanded. Entitlement to an initial compensable rating for left hip degenerative joint disease (limitation of flexion) is remanded. Entitlement to an initial compensable rating for right hip degenerative joint disease (limitation of flexion) is remanded. Entitlement to an initial rating in excess of 10 percent prior to January 7, 2011, and in excess of 20 percent thereafter for right hip degenerative joint disease (limitation of abduction) is remanded. Entitlement to an initial compensable rating for right hip degenerative joint disease (limitation of extension) is remanded. An initial rating in excess of 10 percent for osteoarthritis of the lateral joint compartment, left knee is remanded. FINDING OF FACT The Veteran's left foot disability has caused pain throughout the course of the appeal. CONCLUSION OF LAW The criteria for an initial 10 percent rating for a left foot disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to August 1969. The Board previously considered the issues on appeal, denied a compensable rating for left foot first metatarsophalangeal joint osteoarthritis, and remanded the other issues. In August 2021, the Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand and returned the issue of an increased rating for left foot first metatarsophalangeal joint osteoarthritis to the Board. The issue of entitlement to total disability based on individual unemployability prior to September 30, 2019, was considered part of this appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). However, in the May 2020 VA Form 20-0996, Request for Higher-Level Review, the Veteran opted to pursue an appeal of that issue through the system created by the Veterans Appeals Improvement Modernization Act of 2017 (AMA). Therefore, that issue is not properly before the Board at this time. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's left foot first metatarsophalangeal joint osteoarthritis has been rated noncompensable under Diagnostic Code 5010-5284. VA amended the criteria for rating musculoskeletal disabilities effective February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. However, the Board cannot apply a current regulation prior to its effective date, and the amended regulation was not effective until February 7, 2021. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Diagnostic Code 5010 applies to traumatic arthritis. Prior to the February 7, 2021, amendments, Diagnostic Code 5010 directed the adjudicator to rate traumatic arthritis as degenerative arthritis. Diagnostic Code 5003 addressed degenerative arthritis and directed the adjudicator to rate the disability as on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved, or assign a 10 percent rating if there is x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups; and a maximum, 20 percent rating if there is x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups with occasional incapacitating episodes. Beginning February 7, 2021, Diagnostic Code 5010 directs the adjudicator to rate the disability as limitation of motion, dislocation, or other specified instability under the affected joint. Diagnostic Code 5284 applies to non-specified disabilities of the feet and provides for a 10 percent rating for a moderate condition, 20 percent for moderately severe, and 30 percent for a severe condition. 38 C.F.R. § 4.71a. Diagnostic Code 5284 was unaffected by the February 2021 amendment to the rating schedule. Painful motion is an important factor of disability, and the intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The August 2009 examiner found the left foot was anatomically normal and there was no objective evidence of painful motion or tenderness in the left foot. A January 2011 x-ray revealed mild osteoarthritis of the first MTP joint in the left foot. Although the January 2011 examination primarily addressed the right foot, the examiner observed the motion of the Veteran's left foot and saw no objective evidence of pain. The examiner found the Veteran experienced no functional limitation on standing, walking, or rising to the toes. In April 2019, the Veteran's medical records show that he was examined for chronic left foot pain. During the April 2019 examination, the Veteran reported intermittent left foot pain and described the pain as "all over." He denied flare-ups. The examiner assessed the Veteran's left foot first metatarsophalangeal arthritis as mild. The examiner noted the left foot was not painful at the time of the examination and that the bilateral dorsal and plantar surfaces of the feet were nontender to palpation. The examiner found limited movement only in the right great toe, not the left. The Board finds the Veteran's disability picture is most consistent with a mild, rather than moderate or more severe, condition. The January 2011 examiner classified the osteoarthritis seen on x-ray as mild. Similarly, the April 2019 examiner classified the Veteran's left foot arthritis as mild. The Board finds the mild classification is supported by the lack of record of any treatment sought for the left foot or left foot first toe. The Board has also considered the Veteran's report of left foot pain and whether a minimum compensable rating should be awarded pursuant to 38 C.F.R. § 4.59. After a complete review of the record and giving the Veteran every benefit, he is entitled to a 10 percent rating for his left foot disability based on his experiencing left foot pain throughout the course of his appeal. However, as a moderately severe left foot disability, or even a moderate foot disability, has not been shown at any time, a rating in excess of 10 percent is not warranted. Accordingly, the criteria for an initial 10 percent rating for a left foot disability have been met, and the claim is granted. REASONS FOR REMAND Additional remand is required for the bilateral hip and left knee disabilities. First, in the November 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain examinations of the hips and left knee in compliance with the holding of the Court in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). In Correia, the Court found that for disabilities rated based on limitation of motion, an examination is inadequate if it does not consider "active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint" in accordance with 38 C.F.R. § 4.59. See id. Multiple examiners found the Veteran would experience the same or greater range of motion with passive motion as active motion. Additionally, it is reasonable to assume that range of motion testing during the examinations reflects non-weight-bearing motion. However, none of the examiners addressed whether pain with weight-bearing affects the range of motion of the Veteran's hips and left knee. Additional remand is required to ensure compliance with the Board's prior directives and Court's holding. See Stegall v. West, 11 Vet. App. 268 (1998). Next, although the Veteran subsequently denied experiencing flare-ups in symptoms, he endorsed flare-ups in left knee and bilateral hip pain during the August 2009 examination and flares of knee pain during the January 2011 examination. In a July 2015 addendum opinion, a medical expert considered the Veteran's reports of flare-ups and explained that she was unable to comment on range of motion loss during a flare-up without resorting to speculation. In Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), the Court held that an examiner must try to ascertain information about flare-ups through alternative means, including asking the Veteran to describe additional functional loss and estimating based on his reports, and only then after considering all the lay and medical evidence, can the examiner explain why he or she cannot render an opinion. It does not appear that the January 2011 opinion complies with the Court's holding in Sharp. Therefore, when obtaining a new examination, the AOJ should also request the examiner address the Veteran's reports of flare-ups made during the August 2009 and January 2011 examinations. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records regarding the Veteran's bilateral hip and left knee disabilities. 2. Then, obtain new examinations for the Veteran's bilateral hip and left knee disabilities. The examiner should report all signs and symptoms necessary for evaluation of the Veteran's hips and knee under the rating criteria. In addition to providing range of motion test results in passive, active, and non-weight-bearing motion, the examiner should address the effects of pain on the Veteran's range of motion with weight-bearing or explain why such testing cannot be performed. The examiner is asked to describe the effect of pain on functional ability during flares, if reported currently and those reported for the left knee and hips in the August 2009 examination and for the left knee in the January 2011 examination and estimate the range of motion during flares. THE EXAMINATION SHOULD GLEAN INFORMATION REGARDING THE SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS DURING FLARE-UPS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.