Citation Nr: 18160421
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 10-47 441
DATE:	December 26, 2018
ORDER
Entitlement to service connection for a left foot impairment, to include as secondary to the service-connected mechanical thoracolumbar strain with scoliosis and moderate degenerative disc disease, is granted.    
Entitlement to an initial compensable rating for residual of right-fourth-finger fracture is denied.  
REMANDED
Entitlement to an initial disability rating in excess of 10 percent for mechanical cervical strain is remanded 
Entitlement to an initial disability rating in excess of 10 percent for mechanical thoracic and lumbar strain with scoliosis and moderate degenerative disc disease L1-L3 is remanded. 
Entitlement to an initial compensable rating for left hip sacroiliac joint dysfunction with limitation of rotation associated with mechanical thoracic and lumbar strain with scoliosis and moderate degenerative disc disease L1-L3 is remanded. 
Entitlement to an initial compensable rating for right hip sacroiliac joint dysfunction with limitation of rotation associated with mechanical thoracic and lumbar strain with scoliosis and moderate degenerative disc disease L1-L3 is remanded.  
Entitlement to an initial compensable rating for left hip sacroiliac joint dysfunction with limitation of flexion associated with mechanical thoracic and lumbar strain with scoliosis and moderate degenerative disc disease L1-L3 is remanded. 
Entitlement to an initial compensable rating for right hip sacroiliac joint dysfunction with limitation of flexion associated with mechanical thoracic and lumbar strain with scoliosis and moderate degenerative disc disease L1-L3 is remanded.  
FINDINGS OF FACT
1. The Veteran’s left foot impairment, manifested by pain in the left little toe is secondary to his service connected back disability.   
2. The Veteran has limited painful motion of the right fourth finger.  
CONCLUSIONS OF LAW
1. Service connection for a left foot impairment, to include as secondary to a service connected disability have been met.  38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R § 3.102, 3.303, 3.310.  
2. The criteria for a compensable rating for limited motion related to lacerated wound, 4th digit status post-surgery, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118 DC 5230 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active military service in the US Navy from November 2001 to February 2008.  
This case was previously before the Board in December 2017.  At that time the Board remanded the claim for a new VA examination regarding the Veteran’s left foot disability and right-hand disability.  These actions have been completed, and these claims are once again before the Board for adjudication.  
Further, in September 2017, the Board issued a decision that the Veteran appealed to the to the United States Court of Appeals for Veterans Claims (Court).  In a June 2018 Order granting a partial Joint Motion for Remand (Joint Motion), the Court vacated and remanded a portion of the September 2017 Board decision denying entitlement to (1) an initial disability rating in excess of 10 percent for mechanical cervical strain, (2) an initial disability rating in excess of 10 percent for mechanical thoracic and lumbar strain with scoliosis and moderate degenerative disc disease L1-L3, (3) an initial compensable rating for left hip sacroiliac joint dysfunction with limitation of rotation associated with mechanical thoracic and lumbar strain with scoliosis and moderate degenerative disc disease L1-L3, (4) an initial compensable rating for right hip sacroiliac joint dysfunction with limitation of rotation associated with mechanical thoracic and lumbar strain with scoliosis and moderate degenerative disc disease L1-L3, (5) an initial compensable rating for left hip sacroiliac joint dysfunction with limitation of flexion associated with mechanical thoracic and lumbar strain with scoliosis and moderate degenerative disc disease L1-L3, (6) an initial compensable rating for right hip sacroiliac joint dysfunction with limitation of flexion associated with mechanical thoracic and lumbar strain with scoliosis and moderate degenerative disc disease L1-L3.  
The Veteran agreed to abandon his claims for entitlement to (1) service connection for a right thumb disorder, (2) an initial compensable rating for left great toe muscle strain, and (3) an initial compensable rating for facial scars.   

1. Left Foot Disorder
The Veteran asserts entitlement to a service connection for a left foot impairment, that he believes is cause by or proximately due to his service connected back disability.  
Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).  
Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).
In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  38 C.F.R. § 3.102 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
This case previously before the Board in December 2017, at which time the Board remanded for an additional VA examination and opinion to determine the etiology of his left foot impairment.  
X-ray evidence of the Veteran’s left foot without weight bearing was normal.  The radiologist commented that the left foot imaging revealed normal mineralization, no fractures, or osseous abnormalities were demonstrated.  The joint spaces were well maintained.  See July 30, 2018 Radiology Report. 
During the examination, the Veteran stated that he has pain and numbness in his left little toe when the weather is cold.  However, upon physical examination there was no pain evident, and no functional loss was attributed to the claimed condition.  Lastly, there was no evidence of arthritis upon physical examination.  
The examiner concluded that while the Veteran has claimed a left little toe condition, his x-rays were normal, he had full range of motion upon examination, and there was no obvious deformity.  As such, a chronic left foot condition has not been diagnosed.  Further, the examiner opined that there was no evidence of a balance disorder and that the Veteran’s gait was normal upon examination.  There was no limitation in ambulation due to the left foot and there was diagnosable objective condition.  The examiner did note that that the Veteran had subjective complaints of pain and tingling in the left little toe; however, the examiner concluded that it was less likely than not that the Veteran’s left little toe is proximately due to or the result of mechanical thoracic and lumbar strain with scoliosis and moderate degenerative disc disease L1-L3.  
Nevertheless, the Board finds that there does not need to be objective evidence of pain, for the Veteran to receive entitlement to service connection.  If credible, lay testimony may consist of a veteran’s own statements to the extent that the statements describe symptoms capable of lay observation.  27 Vet. App. 415, 427-28 (2015) (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).  The Board finds that the Veteran is both competent and credible in reporting that during the appeal period he has had left foot pain, specifically in the left little toe that is related to his service connected back disability.  
Further, the Federal Circuit held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes.  Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018).  As such, the Board finds that service connection for a left foot impairment, manifested by pain the left little toe is warranted.  
2. Right Hand Disability 
The Veteran seeks an initial compensable disability rating for a right fourth finger fracture.  
Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2017).  When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two evaluations is to 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 (2017).
Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found.  Id.  
When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). 
Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.
The Veteran’s right-hand disability is rated under Diagnostic Code 5024-5230.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  See 38 C.F.R. § 4.27(2017).  The hyphenated diagnostic code, in this case, indicates that Diagnostic Code 5024 was the service-connected disorder, while the residual condition, rated by analogy is limitation of motion of the ring or little finger, which is evaluated under 38 C.F.R. § 4.71a, DC 5230.
DC 5230 provides for a noncompensable rating for limitation of motion of the ring or little finger.  38 C.F.R. § 4.71a DC 5230.  The fourth digit is the ring finger, and there is no indication of the involvement of another finger.
The Veteran was afforded a VA examination in August 2018, specifically to determine if there was any evidence of arthritis.  The radiology report from July 2018, did not reveal any abnormalities.  There was no evidence of fractures or osseous demonstrated and the soft tissue was unremarkable.  The conclusion was that the right hand was normal.  
The Veteran’s representative argued that the Veteran’s fourth finger could qualify for a compensable disability rating under the degenerative arthritis code, and he asserts that the Veteran’s fourth finger joints constitute a group of minor joints.  
However, the VA examiner in August 2018, specifically stated the fourth finger is considered a single joint and there is no evidence of arthritis based on imaging studies.  
Based on the evidence of record, a higher rating for limited motion associated with left ring finger is not warranted.  The Veteran has limited ring finger motion, without other symptomatology warranting a higher rating.  The Board has considered the Veteran’s statements of limited motion and flare-ups during cold weather.  Though the Veteran has noted pain associated with his left fourth finger, because the diagnostic code under which the disability is rated does not provide for a compensable rating, a minimum compensable rating is not available for pain.  Sowers v. McDonald, 27 Vet. App. 472 (2011). 
REASONS FOR REMAND
Unfortunately, prior to the Board adjudicating the rest of the issues on appeal, it is necessary to remand this appeal in order to comply with the Courts June 2018 order granting the parties’ Joint Motion.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the JMR or explain why the terms will not be fulfilled.). 
In the Joint Motion, the Court noted that the examinations provided were inadequate.  Specifically, the examination provided to determine the severity of the Veteran’s spine disabilities (to include the neck and back) did not consider functional loss during flare-ups.  Sharp v. Shinseki, 29 Vet. App. 26, 35 (2017).  With respect to Sharp, the examiner also failed to estimate the amount of lost range of motion due to functional loss, in this case, pain on prolonged weight bearing and repetitive range of motion
Regarding, the Veteran’s claims for increased ratings for his left and right hip conditions, the Court found that the examinations provided did not comply with Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016).  With respect to Correia, the examiner failed to note the point at which the Veteran experienced pain during range of motion testing and the examiner failed to record the results of joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing.  
The matters are REMANDED for the following action:
1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the extent and severity of any of his orthopedic disabilities symptoms and the impact of these conditions on his ability to work.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.
2. After associating any outstanding VA treatment records, schedule the Veteran for appropriate VA examination to determine the current nature and severity of his orthopedic disabilities.  
(a.) The examiner must conduct all indicated tests and studies, to include range of motion studies.  The orthopedic disabilities must be tested in both active and passive motion, in weight-bearing and non-weight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so.
(b.) The examiner must describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. 
(c.) The examiner must also state whether the examination is taking place during a period of flare-up (e.g., on a “bad day”).  If not, the examiner must 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.
(d.) Based on the Veteran’s lay statements and the other evidence of record, the examiner must provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time for each service connected disability.  If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Anderson 

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