Citation Nr: 22018693 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 13-07 613 DATE: March 30, 2022 REMANDED Entitlement to an increased rating for right foot bunion/hallux valgus with arthritis, rated as noncompensable prior to August 31, 2010, 10 percent disabling from August 31, 2010 to January 3, 2022, and 20 percent disabling thereafter, is remanded. Entitlement to an increased rating for status-post left bunionectomy with hallux valgus and arthritis, rated as noncompensable prior to August 31, 2010, 10 percent disabling from August 31, 2010 to January 3, 2022, and 20 percent disabling thereafter, is remanded. Entitlement to an increased rating for lumbar spine degenerative disc disease, rated 10 percent disabling prior to August 31, 2010 and 20 percent disabling thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1986 to April 1987 and January 1989 to October 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were most recently before the Board in November 2018, when they were remanded for development consistent with the terms of a June 2018 Joint Motion for Partial Remand (JMPR) granted by the United States Court of Appeals for Veterans Claims (Court), which vacated a prior July 2017 Board decision that denied higher ratings for the Veteran's service-connected psychiatric disability, status-post left bunionectomy with hallux valgus and arthritis, and right foot bunion/hallux valgus with arthritis. In November 2021, the Board denied the increased rating claim for PTSD and remanded the increased rating foot claims again. Additionally, the Board requested that the RO review the August 2021 VA spine examination in the first instance and issue a supplemental statement of the case (SSOC). The RO has complied with the remand directive in that regard. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a January 2022 rating decision, the RO granted an increased rating for right foot bunion with hallux valgus and arthritis, and status post left bunionectomy with hallux valgus and arthritis from 10 percent to 20 percent effective January 4, 2022. As the increased rating was a partial resolution of the appeal, the issue of an increased rating prior to and from January 4, 2022 remains on appeal. 1. Entitlement to an increased rating for right foot bunion/hallux valgus with arthritis, rated as noncompensable prior to August 31, 2010, 10 percent disabling from August 31, 2010 to January 3, 2022, and 20 percent disabling thereafter, is remanded. 2. Entitlement to an increased rating for status-post left bunionectomy with hallux valgus and arthritis, rated as noncompensable prior to August 31, 2010, 10 percent disabling from August 31, 2010 to January 3, 2022, and 20 percent disabling thereafter, is remanded. The Veteran contends that his bilateral foot condition is more severe than contemplated by the assigned disability ratings. In the November 2021 remand, the Board requested that an examiner explicitly state what symptoms are attributable to both the Veteran's status-post left bunionectomy with hallux valgus and arthritis and right foot bunion/hallux valgus with arthritis, noting a summary response regarding the level of severity of symptoms, i.e., mild, moderate, moderately severe, or severe, standing alone will be deemed inadequate to inform the analysis of the proper rating assigned for the current bilateral foot condition on appeal in light of the Veteran's other comorbid foot disabilities. Subsequently, a January 2021 VA examination demonstrated moderate to severe bilateral foot pain, the Veteran's reports of intense pain with weight bearing and non-weight bearing in the bilateral foot, mild to moderate pain in the right foot due to the hallux valgus condition, and constant pain and pressure due to left foot fusion first metatarsal joint. Notably, the examiner did not find evidence of pain upon physical examination but indicated a finding for subjective complaints of pain only; the examiner did not comment on whether subjective complaints of pain contributed to functional loss. The examiner noted that the Veteran reported similar symptoms for each foot condition, i.e., pain and pressure, and that it would be mere speculation to distinguish which symptom is attributable for each service-connected foot condition. The Board finds the January 2021 VA opinion is inadequate. First, the Board notes that the examiner found no evidence of pain upon physical examination other than the Veteran's subjective complaints but failed to provide an opinion on whether subjective complaints of pain contribute to functional loss. Additionally, with regard to the hallux valgus section of the foot examination, the examiner only noted mild to moderate symptoms of right foot hallux valgus but did not make a factual finding, if any, for symptoms associated with status-post left bunionectomy, an inconsistency noted in the November 2021 Board remand with regard to the September 2019 VA examination. Moreover, the Board points out that a finding for mild to moderate symptoms for only the right foot hallux valgus condition is inconsistent with the Veteran's reports for "pressure and pain" in the bilateral foot and the examiner's conclusion regarding mere speculation as to distinguishable symptoms of each service-connected foot condition. As such an addendum opinion is required to determine the current severity of the Veteran's service-connected right foot hallux valgus and status-post left bunionectomy conditions. 3. Entitlement to an increased rating for lumbar spine degenerative disc disease, rated as 10 percent disabling prior to August 31, 2010 and 20 percent disabling thereafter, is remanded. The Veteran contends that his lumbar spine disability is more severe than contemplated by the assigned disability ratings. An August 2021 VA examination demonstrated the Veteran's complaints for daily, moderate pain and functional loss. The examination showed abnormal range of motion with evidence of pain and functional loss; passive range of motion testing was unfeasible as the force needed would cause the Veteran harm. Additionally, the examination demonstrated evidence of pain upon repeated use over time and flare ups but no evidence of guarding, muscle spasm, radiculopathy, and ankylosis. Lastly, the examination demonstrated evidence of intervertebral disc syndrome (IVDS) and the inability to lift objects greater than 50 pounds or perform repetitive bending. The Board finds the August 2021 VA examination is inadequate as the examiner failed to discuss additional functional loss and reduced range of motion estimates during repetitive use or flare-ups. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As such, a new VA examination discussing additional functional impairment during repetitive use and flare-ups is necessary to comply with the Court's holdings in Sharp and DeLuca. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from the January 2022 VA examiner or another qualified clinician. The examiner should attempt to delineate the symptoms associated with the Veteran's service-connected bilateral pes planus, as well as his other comorbid foot conditions, from his status-post left bunionectomy with hallux valgus and arthritis and right foot bunion/hallux valgus with arthritis. The opinion must explicitly state what symptoms are attributable to both the Veteran's status-post left bunionectomy with hallux valgus and arthritis and right foot bunion/hallux valgus with arthritis. The examiner should reconcile inconsistencies in the January 2022 VA examination only demonstrating mild to moderate symptoms of the hallux valgus condition in the right foot only. A complete rationale must be provided for any opinion rendered. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Readjudicate the claims. If the benefits sought on appeal remain denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, Associate 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.