Citation Nr: 22018305
Decision Date: 03/28/22	Archive Date: 03/28/22

DOCKET NO. 15-39 381
DATE: March 28, 2022

ORDER

Entitlement to an evaluation of 20 percent, but no higher, for left foot tendinitis and osteoarthrosis is granted.

Entitlement to an evaluation of 40 percent, but no higher, for lumbar sprain and strain (lumbar sprain) is granted.

Entitlement to an evaluation of 30 percent, but no higher, for neck strain and sprain (neck strain) is granted.

REMANDED

Entitlement to service connection for a disability of the third digit of the right hand is remanded.

Entitlement to service connection for a left ankle disability is remanded.

Entitlement to service connection for a right foot disability is remanded.

Entitlement to an evaluation in excess of 20 percent for right shoulder sprain and strain and fracture of the clavicle (right shoulder and clavicle disability) is remanded.

Entitlement to an evaluation in excess of 10 percent for right knee instability is remanded.

Entitlement to an evaluation in excess of 10 percent for right knee strain is remanded.

FINDINGS OF FACT

1. After resolving reasonable doubt in his favor, the Veteran's left foot tendinitis and osteoarthrosis has manifested in moderately severe symptoms.

2. After resolving reasonable doubt in his favor, the Veteran's lumbar sprain manifested in functional loss equivalent to flexion limited to at least 30 degrees.

3. After resolving reasonable doubt in his favor, the Veteran's neck strain manifested in functional loss equivalent to flexion limited to at least 15 degrees.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an evaluation of 20 percent, but no higher, for left foot tendinitis and osteoarthrosis have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5284 (2021).

2. The criteria for entitlement to an evaluation of 40 percent, but no higher, for lumbar sprain have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5237 (2021).

3. The criteria for entitlement to an evaluation of 30 percent, but no higher, for neck strain have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5237 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 2009 to May 2013.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA). This case was remanded in July 2019 for further development.

In June 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. A significant portion of the transcript is inaudible. VA notified the Veteran and his representative of his right to a new hearing, but they did not respond to VA's correspondence. See November 2020 VA correspondence; February 2022 VA correspondence.

After the Board's remand, the agency of original jurisdiction (AOJ) granted service connection for a right ankle disability and a right hip disability. See November 2019 rating decision. Because that decision represents a full grant of the benefit sought, those issues are no longer on appeal. Additionally, the AOJ granted increased ratings for the Veteran's lumbar sprain, right shoulder and clavicle disability, and left foot tendinitis. Id. The issues have been recharacterized accordingly.

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, there must be consideration of functional loss caused by factors that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) ("functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor...that actually limited motion" (emphasis removed)). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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).

The provisions of 38 C.F.R. § 4.59 acknowledge that a claimant's disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. Accordingly, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). However, pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011).

The Board notes that, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). Where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria and, should an increased rating be warranted under revised criteria, that award may not be made effective before the effective date of the change. These changes do not affect the matters being decided herein. As a result, they will not be further discussed.

1. Entitlement to an evaluation in excess of 10 percent for left foot tendinitis and osteoarthrosis.

The Veteran's left foot tendinitis and osteoarthrosis is currently rated pursuant to Code 5284, which is for other foot injuries. Pursuant to that Code, moderate symptoms are assigned a 10 percent rating. Moderately severe symptoms are assigned a 20 percent rating. Severe symptoms are assigned a 30 percent rating. Pursuant to a Note, a maximum 40 percent rating is assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a.

During a June 2013 VA examination, the Veteran reported wearing custom made orthotics. He had limitations with running, jumping, and extended periods of walking. In September 2016 VA treatment records, the Veteran reported pain at the dorsum of his left foot that sometimes spread to his ankle like a seat belt. 

During an October 2019 VA examination, he reported chronic daily pain, which was typically a broad stabbing pain in character, spreading over the entire foot. His foot was achy and warm with pain, typically a three out of 10 in severity. He reported immediate onset of increased pain with fast walking or shuffling. The pain was a nine out of 10 and lasted until he could get off his feet. If he wore any shoe without support, he would have increased foot pain. His foot pain limited prolonged walking and standing. He could not do high impact activities such as running, jumping, or pushing with his left foot, such as when driving manual transmission vehicles.

After resolving reasonable doubt in the Veteran's favor, the Board finds that his tendinitis and osteoarthrosis has manifested in moderately severe symptoms. Specifically, the Board has considered the functional impairment caused by his left foot symptoms, which included limited walking and standing, as well as an inability to drive a manual transmission vehicle. Although it is unclear whether his symptoms as reported in October 2019 are applicable throughout the entire appeal period, the Board will resolve reasonable doubt in his favor. As a result, a 20 percent rating is warranted.

The Board finds that the Veteran's symptoms are not severe because his constant pain is milder in nature and he is able to still walk and standing for limited periods of time. Although he wears orthotics, his foot pain, weakness, and fatigability do not appear to significantly impair his ability to function with daily tasks such that he is unable to partake in most daily activities or has complete loss of use of his foot. For these reasons, a higher rating is not warranted.

The Board has considered whether the Veteran can be awarded a higher rating for his disability pursuant to a different Code. The Codes applicable to arthritis do not provide for a rating in excess of 20 percent. The Veteran is also not diagnosed with other left foot disabilities for which a different Code applicable to the foot may be used. As a result, the Veteran is rated pursuant to the most appropriate Code for his disability.

2. Entitlement to an evaluation in excess of 10 percent prior to August 20, 2019 and in excess of 20 percent thereafter for lumbar sprain.

The Veteran is currently rated pursuant to Code 5237 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. 

"Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which...the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." See id., General Formula, Note (5).

The Board notes that remand pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), is not necessary because the Veteran must show unfavorable ankylosis to be entitled to an increased rating in excess of 40 percent. The considerations in Correia do not apply to the symptoms that must be shown for unfavorable ankylosis, such as restricted opening of the mouth or a limited line of vision, and thus remand for a new examination would provide little probative value. The record does not reflect, nor has the Veteran stated, that he has any of the requisite symptoms for a finding of unfavorable ankylosis. Accordingly, the Board finds that remand for a new VA examination is unnecessary.

As discussed in the Board's prior remand, a June 2013 VA examination is not in compliance with Correia. Thus, the findings therein are given no probative weight. Although an October 2019 VA examination is also not compliant with Correia, the examiner noted that passive range of motion could not be performed as it was not feasible to do so in a safe and reasonable manner.

After considering the Veteran's reports during the October 2019 VA examination of chronic daily pain that was throbbing in nature, along with his report of limitation of prolonged sitting, walking, standing, lifting, carrying, bending, and twisting, as well as the VA examiner's inability to conduct passive range of motion testing in a reasonable manner, the Board will resolve reasonable doubt in the Veteran's favor and find that his lumbar sprain has manifested in functional loss equivalent to flexion limited to at least 30 degrees due to excess fatigability, weakness, and pain. Thus, a 40 percent rating is warranted.

To warrant a disability rating in excess of 40 percent, the evidence would need to show unfavorable ankylosis of the thoracolumbar spine or the entire spine. There is no evidence in the record that the Veteran suffers from the symptoms associated with unfavorable ankylosis. Accordingly, an increased rating in excess of 40 percent must be denied.

3. Entitlement to an evaluation in excess of 10 percent for neck strain.

The Veteran's neck strain is currently rated pursuant to Code 5237 and the General Formula. Under the General Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The criteria for unfavorable ankylosis are the same as discussed above.

The Board notes that remand pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), is not necessary because the Veteran must show unfavorable ankylosis to be entitled to an increased rating in excess of 30 percent. The considerations in Correia do not apply to the symptoms that must be shown for unfavorable ankylosis, such as restricted opening of the mouth or a limited line of vision, and thus remand for a new examination would provide little probative value. The record does not reflect, nor has the Veteran stated, that he has any of the requisite symptoms for a finding of unfavorable ankylosis. Accordingly, the Board finds that remand for a new VA examination is unnecessary.

As discussed in the Board's prior remand, a June 2013 VA examination is not in compliance with Correia. Thus, the findings therein are given no probative weight. Although an October 2019 VA examination is also not compliant with Correia, the examiner noted that passive range of motion could not be performed as it was not feasible to do so in a safe and reasonable manner.

After considering the Veteran's reports during the October 2019 VA examination of chronic daily pain that was achy in nature, along with his report of limitation of prolonged driving, lifting, and carrying, as well as the VA examiner's inability to conduct passive range of motion testing in a reasonable manner, the Board will resolve reasonable doubt in the Veteran's favor and find that his neck strain has manifested in functional loss equivalent to flexion limited to at least 15 degrees due to excess fatigability, weakness, and pain. Thus, a 30 percent rating is warranted.

To warrant a disability rating in excess of 30 percent, the evidence would need to show unfavorable ankylosis of the cervical spine or the entire spine. There is no evidence in the record that the Veteran suffers from the symptoms associated with unfavorable ankylosis. Accordingly, an increased rating in excess of 30 percent must be denied.

REASONS FOR REMAND

1. Entitlement to service connection for a disability of the third digit of the right hand.

The Veteran reported that he suffered an injury to the third digit of his right hand in December 2012 when he fell in the water after his kayak capsized. He reported that he had limited range of motion and a weak grip that continued since active duty. See October 2019 VA examination. Service treatment records (STRs) reflect his injury.

In October 2019, a VA examiner opined that the Veteran had a history of a right third digit sprain that was resolved and less likely than not related to service. The Board notes that pain with functional impairment is a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). The medical opinion is inadequate because it is unclear whether the examiner diagnosed the Veteran with a current disability, and it relied on the absence of evidence of medical records. Thus, remand for a new examination is necessary.

2. Entitlement to service connection for a left ankle disability.

STRs reflect consistent reports of left ankle pain after a parachute jump landing. See, e.g., May 2011 STRs. In October 2019, a VA examiner diagnosed acute ankle sprain. It is unclear whether the examiner provided an opinion regarding the Veteran's left ankle rather than his right ankle; indeed, it appears there was no opinion provided. Thus, remand for a new examination is necessary.

3. Entitlement to service connection for a right foot disability.

STRs reflect reports of right foot pain. See, e.g., February 2010 STRs. It does not appear an October 2019 VA examiner diagnosed any right foot disability, despite the Veteran reporting that he had pain and difficulty walking. See July 2019 BVA remand. Despite the Board's remand for a medical opinion about the Veteran's right foot, one was not provided. Thus, remand for a new examination is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

4. Entitlement to an evaluation in excess of 20 percent for a right shoulder and clavicle disability; entitlement to an evaluation in excess of 10 percent for right knee instability; entitlement to an evaluation in excess of 10 percent for right knee strain.

VA examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the VA shoulder and knee examinations of record do not fully comport with the requirements of Correia. See October 2019 VA examinations. Thus, remand is necessary for new VA examinations.

The matters are REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records from November 2019 to the present.

2. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any third digit of the right hand disabilities. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following:

(a.) Please identify, by diagnosis, any third digit of the right hand disabilities present during the appeal period (from May 2013). Pain with functional impairment is a disability for VA purposes.

(b.) For any disability of the third digit of the right hand diagnosed or for pain with functional impairment, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The examiner must consider December 2012 STRs and the Veteran's report of symptoms since service. The examiner may not rely merely on the absence of evidence in medical records.

3. After the development in the first directive is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any left ankle disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following:

(a.) Please identify, by diagnosis, any left ankle present during the appeal period (from May 2013). Pain with functional impairment is a disability for VA purposes.

(b.) For any left ankle disability or for pain with functional impairment, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. STRs reflecting left ankle pain must be discussed. The examiner may not rely merely on the absence of evidence in medical records.

4. After the development in the first directive is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any right foot disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following:

(a.) Please identify, by diagnosis, any right foot present during the appeal period (from May 2013). Pain with functional impairment is a disability for VA purposes.

(b.) For any right foot disability or for pain with functional impairment, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The examiner may not rely merely on the absence of evidence in medical records.

5. After the above development is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected right shoulder (to include any impairment of the clavicle) and right knee disabilities. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed.

The examiner must discuss whether there is any malunion, nonunion, or dislocation of the Veteran's clavicle.

Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted.

If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate.

6. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures.

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Sandler, 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.