Citation Nr: 22017284 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-03 220 DATE: March 24, 2022 ORDER An initial compensable rating for a left foot disorder, characterized as residuals of a left 5th toe fracture is denied. REMANDED Entitlement to service connection for a bilateral lower extremity disorder, to include as due to a left 5th toe fracture characterized as lymphedema, is remanded. Entitlement to service connection for bilateral plantar fasciitis, to include as secondary to residuals of a left 5th toe fracture, is remanded. FINDING OF FACT During the period on appeal, the Veteran's left foot disorder was characterized by a mild severity; a moderate severity has not been shown. CONCLUSION OF LAW The criteria for an initial compensable rating for a left foot disorder, characterized as residuals of a left 5th toe fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1979 to February 1983, September 1988 to August 1989, and from January 1991 to April 1991. He also served in the Army Reserve from February 1983 to February 2004. These matters return to the Board of Veterans' Appeals (Board) following the issuance of March 2019, December 2020, and September 2021 Board remand decisions which directed the Regional Office (RO) to complete additional development. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown,8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a ; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. An initial compensable rating for a left foot disorder, characterized as residuals of a left 5th toe fracture The Veteran is seeking an initial compensable rating for a left foot disorder, characterized as residuals of a left 5th toe fracture. The Veteran claims that the assigned disability rating does not adequately contemplate the severity of the disability. During the entirety of the Veteran's appeal, his left foot disability has been assigned a noncompensable rating under Diagnostic Code (DC) 5284. 38 C.F.R. § 4.71a, DC 5284 (addressing other foot injuries). Under DC 5284, the next highest, 10 percent disability rating is warranted when there are moderate symptoms. Following a review of the evidence of record, the Board concludes that a higher rating is not warranted. The Veteran was provided with a VA examination in December 2021 to evaluate the severity of his left foot disability. Previous VA examinations involving the Veteran's left 5th toe have been found to be inadequate. At the December 2021 examination, the Veteran reported foot pain. However, the Veteran did not indicate that he experienced any functional loss or reduction in range of motion. The examiner opined that the overall severity of the Veteran's left toe disability was mild. The tests performed by the examiner indicated that there was no observed functional loss due to the Veteran's left foot disability. There is no evidence in the Veteran's medical records which indicates an increase in severity of the Veteran's left foot disability. Moreover, the Veteran has not submitted evidence such as private examinations or opinions regarding the severity of his left foot disability. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his left foot disability is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's left foot disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the Veteran's left foot disability is evaluated. Thus, a compensable rating for the Veteran's left foot disability, characterized as residuals of a left 5th phalanx fracture is not warranted. The Veteran's claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral lower extremity disorder, characterized as lymphedema, to include as due to a left 5th toe fracture, is remanded. 2. Entitlement to service connection for bilateral plantar fasciitis, to include as secondary to residuals of a left 5th toe fracture, is remanded. The Veteran has also submitted service connection claims for a bilateral lower extremity disorder, characterized as lymphedema, and for bilateral plantar fasciitis. The Veteran has claimed that these disorders may be secondarily due to his left foot disorder. Importantly, these claims were remanded previously to evaluate this theory of entitlement. Secondary service connection is not limited to the theory of causation and also includes the theory that disorders can be aggravated beyond their natural course due to other service-connected disabilities. The Veteran was provided with a VA examination for these two disorders in December 2021. The examiner opined that neither disorder could be secondarily related to the Veteran's left foot disorder citing "other etiologies and vascular issues". There was no further explanation of the examiner's opinion and no discussion of aggravation. Thus, the examiner's opinion cannot be utilized by the Board in its evaluation of the Veteran's claims. There has not been substantial compliance with the previous Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). A remand must be issued in this case to obtain an addendum opinion in order to remedy the deficient examination opinion. The matters are REMANDED for the following action: 1. The RO should invite the Veteran to submit any additional evidence in support of his claims. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral lower extremity disorder and bilateral plantar fasciitis are at least as likely as not (a 50 percent or greater probability) secondarily caused or aggravated beyond natural progression by a service-connected disability, specifically the Veteran's left foot disability, characterized by residuals of a left 5th phalanx fracture. The examiner is reminded that aggravation is a separate consideration from causation by these disabilities. The need for a new examination is left to the discretion of the examiner selected to provide the opinion. The complete claims file should be made available to the examiner. All opinions should be accompanied by adequate reasons and bases. If the examiner cannot provide the requested opinion without resorting to mere speculation, they should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that they have exhausted the limits of current medical knowledge in providing an answer to that particular question(s). B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor