METATARSALGIA

MICHELLE P. KATZ · 2022 · Case ID: 22045226

MIXED

Summary

The veteran, who served in the U.S. Army from March 2007 to October 2009, appeals decisions denying service connection for a right foot condition, entitlement to specially adapted housing (SAH), and a special home adaptation (SHA) grant. The Board granted service connection for PTSD and lumbosacral strain, awarding initial ratings of 70% for PTSD and 40% for lumbosacral strain. The Board found the veteran's PTSD symptoms, including depression, anxiety, anger, impaired impulse control, and prior suicidal ideation, met the criteria for a 70% rating, resolving reasonable doubt in his favor. For lumbosacral strain, the Board found the veteran's inability to ambulate due to muscle spasms during flare-ups, as noted in a September 2017 VA examination, was comparable to favorable ankylosis, warranting a 40% rating. The claims for SAH and SHA were denied as the veteran's service-connected disabilities did not meet the statutory criteria. The claim for right foot metatarsalgia was remanded for a new VA examination to determine if it is secondary to or aggravated by the service-connected left foot condition, as new and material evidence was submitted suggesting a potential relationship.

Rationale

New and material evidence submitted; Suggests potential relationship to service-connected left foot condition; No prior opinion of record on secondary connection

Service Branch

ARMY

Special Benefit

AUTO / ADAPTIVE EQUIPMENT

Docket No.

18-13 767

Full Decision Text

Citation Nr: 22045226
Decision Date: 08/10/22 Archive Date: 08/09/22

DOCKET NO. 18-13 767
DATE: August 10, 2022

ORDER

The request to reopen the claim for entitlement to service connection for right foot metatarsalgia based on receipt of new and material evidence is granted.

Entitlement to an initial rating of 70 percent, but no greater, for post-traumatic stress disorder (PTSD) is granted.

Entitlement to an initial rating of 40 percent, but no greater, for lumbosacral strain is granted.

Entitlement to a certificate of eligibility for specially adapted housing (SAH) is denied.

Entitlement to a certificate of eligibility for special home adaptation (SHA) grant is denied.

REMANDED

Entitlement to service connection for right foot metatarsalgia, to include as secondary to service-connected left foot condition, is remanded.

FINDINGS OF FACT

1. A February 2012 rating decision denied service connection for a right foot condition. The decision was not timely appealed, and no additional evidence was received within one year of the rating decision; that decision is final.

2. Since the February 2012 rating decision, new evidence has been added to the record that relates to an unestablished fact or raises a reasonable possibility of substantiating a claim of entitlement to service connection for right foot metatarsalgia.

3. Since the initial grant of service connection, the Veteran's PTSD has been manifested by symptoms more closely approximating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

4. Since the initial grant of service connection, the Veteran's lumbar spine disability been manifested by functional impairment equivalent to favorable ankylosis of the thoracolumbar spine.

5. The Veteran's service-connected disabilities do not result in a loss or loss of use of a lower or upper extremity, he does not have ankylosis of the knee or hip, and he is not service-connected for a severe burn injury, amyotrophic lateral sclerosis, an eye disability, or an inhalation injury.

6. The Veteran's service-connected disabilities do not result in blindness in both eyes with 5/200 visual acuity or less, involve the anatomical loss or loss of use of both hands, certain deep partial and full thickness or subdermal burns, or residuals of an inhalation injury.

CONCLUSIONS OF LAW

1. The criteria to reopen claim for entitlement to service connection for metatarsalgia, right foot based on receipt of new and material evidence have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.

2. The criteria for entitlement to an initial rating of 70 percent, but no greater, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.655, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411.

3. The criteria for an initial rating of 40 percent, but no greater, for lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.655, 4.1, 4.3, 4.40, 4.45, 4.7, 4.71a, DC 5237.

4. The criteria for a certificate of eligibility for SAH have not been met. 38 U.S.C. §§ 2101, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.809.

5. The criteria for a certificate of eligibility for SHA grant have not been met. 38 U.S.C. §§ 2101(b), 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.809a.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Army from March 2007 to October 2009.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision, which denied reopening the claim for service connection for a right foot condition; a February 2018 rating decision, which granted service connection for PTSD (with
SHA grant have not been met. 38 U.S.C. §§ 2101(b), 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.809a.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Army from March 2007 to October 2009.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision, which denied reopening the claim for service connection for a right foot condition; a February 2018 rating decision, which granted service connection for PTSD (with a 30 disability rating) and lumbosacral strain (with a 20 percent disability rating); and a September 2018 rating decision, which denied entitlement to SAH and SHA, issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran filed a timely substantive appeal and requested a Board hearing by live videoconference at a local VA office. See Form 9, July 2019. In a November 2021 correspondence, the Veteran, through his representative, withdrew his request for a Board hearing. See Third Party Correspondence, November 2021. The Board therefore deems the hearing request withdrawn pursuant to 38 C.F.R. § 20.702(e).

Additionally, the Veteran requested an additional 90 days to submit more evidence. Id. In January 2022, the request was granted. See Extension Request, January 2022. To date, no additional evidence has been submitted.

The matter has been returned to the Board for further appellate proceedings.

New and Material Evidence

Once a decision becomes final, absent submission of new and material evidence, a claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993).

New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. Elkins v. West, 12 Vet. App. 209 (1999).

In determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. § 3.156; Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

The request to reopen the claim for entitlement to service connection for right foot metatarsalgia based on receipt of new and material evidence is granted.

The Veteran's claim for service connection for a right foot condition was denied in a February 2012 rating decision on the basis that the evidence did not show a link between the Veteran's claimed right foot condition and his military service.

In February 2015, the Veteran requested to reopen the claim for a right foot condition. In September 2015, VA denied reopening of the claim for service connection for right foot metatarsalgia because the Veteran had not submitted any evidence that would raise a possibility of substantiating the claim. The Veteran disagreed and filed a timely substantive appeal.

Regardless of the AOJ's determination, it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been presented. Barnett v. Brown, 8 Vet. App. 1 (
denied in a February 2012 rating decision on the basis that the evidence did not show a link between the Veteran's claimed right foot condition and his military service.

In connection with the Veteran's claim to reopen, the Veteran submitted new and material in the form of VA treatment records, private medical records, and a September 2017 VA examination showing that the Veteran reported that his right foot pain began when he started to compensate for his service-connected left foot condition. The Board finds that the Veteran's lay statement constitutes new and material evidence regarding his right foot claim, as it suggests a potential relationship between the current right foot disorder and the service-connected left foot disability. Therefore, the Board finds that the new and material evidence has been received sufficient to reopen the previously denied claim. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242 (2010).

Increased Rating

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

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).

1. Entitlement to an initial rating of 70 percent for PTSD is granted.

The Veteran asserts that a higher rating is warranted for his service-connected PTSD. The Veteran's PTSD is currently rated as 30 percent disabling under DC 9411. See 38 C.F.R. § 4.130, DC 9411.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.

A 50 percent is assigned when a psychiatric disability causes occupational and social impairment with reduced reliability and productivity, due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and
must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.

A 50 percent is assigned when a psychiatric disability causes occupational and social impairment with reduced reliability and productivity, due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent evaluation is assigned when a psychiatric disability causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships.

A 100 percent rating is assigned when a psychiatric disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name.

The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. However, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130.

The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD symptoms more nearly approximate the criteria for a 70 percent rating.

The evidence of record contains a November 2014 VA primary care note, which notes that the Veteran was experiencing PTSD symptoms. See Capri, April 2019. The provider noted that the Veteran reported a history of treatment for suicidal ideations and PTSD. The Veteran reported that he no longer had suicidal ideations.

The record also contains a November 2016 private psychological evaluation. The report describes the Veteran's PTSD symptoms, including intrusive thoughts and memories; nightmares; flashbacks; psychological distress at exposure to cues; panic attacks; avoidance of trauma-related stimuli; distrust and paranoia; diminished interest and pleasure in usual activities; social isolation; irritability without physical aggression; hypervigilance; sleep disturbance; severe impairment in social functioning; and moderate impact in occupational functioning. Mental status examination showed the Veteran to have fair concentration; short attention span; and normal psychomotor activity. Speech patterns were coherent but digressive, tangential, and circumstantial. Affect was normal and mood was described as "blah" or depressive. The Veteran denied wide mood swings, but admitted to emotional lability with temper spells and crying. The Veteran reported feeling depressed four or five times per week. He described a suicide attempt in 2010 in which he tried to overdose on medication. The Veteran denied any obsessions, but was ruminative about Afghanistan. He was detached, preoccupied, touchy, and suspicious, but alert and fully oriented. Based on the Veteran's medical record and examination, the psychologist determined that the Veteran met the criteria for PTSD and secondary bipolar disorder, to include paranoia and depression. The examiner noted that the Veteran's bipolar disorder with psychotic features and PTSD diagnoses did not overlap, noting that the Veteran's delusions and delusional thinking were separate from his PTSD. The
to emotional lability with temper spells and crying. The Veteran reported feeling depressed four or five times per week. He described a suicide attempt in 2010 in which he tried to overdose on medication. The Veteran denied any obsessions, but was ruminative about Afghanistan. He was detached, preoccupied, touchy, and suspicious, but alert and fully oriented. Based on the Veteran's medical record and examination, the psychologist determined that the Veteran met the criteria for PTSD and secondary bipolar disorder, to include paranoia and depression. The examiner noted that the Veteran's bipolar disorder with psychotic features and PTSD diagnoses did not overlap, noting that the Veteran's delusions and delusional thinking were separate from his PTSD. The examiner concluded that the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas including work, family relations, judgment, thinking, mood, suicidal ideation, speech tangential and irrelevant at times, panic and depression, and difficulty with status and maintaining affective relationships. The Veteran's PTSD diagnosis was confirmed and a separate diagnosis of unspecified bipolar and related disorder to include depression and suicidal thinking was noted.

In September 2017, the Veteran was afforded a VA PTSD examination. The report notes that the Veteran reported symptoms including depression, anxiety, and difficulty establishing and maintaining effective work and social relationships. The Veteran stated that he had not worked in almost a year, although he had tried. He reported that he tried three different times to find employment, with eight months being the longest period of work. The Veteran reported that he participated in outpatient medication management services from April 2010 to November 2011, but that he quit attending because he became 'paranoid' due to the doctor's ethnicity. On mental status examination, the Veteran was casually dressed, neat, and clean in appearance. His mood was anxious with congruent affect, and he was fidgety in demeanor. Insight and judgment appeared limited but eye contact was good, and the Veteran easily engaged with the examiner. Speech was clear, logical, goal-directed, and relevant. There was no evidence of any psychotic processes. The Veteran was alert and fully oriented, and denied current suicidal and homicidal ideation. The examiner diagnosed PTSD, and concluded that the Veteran's PTSD was manifested by occupational and social impairment due to transient symptoms resulting in decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication.

In March 2019, the Veteran was scheduled for a VA PTSD examination in connection with his claim for an increased rating for PTSD. A May 2019 VA examination request notes that the examination was cancelled because the Veteran failed to appear for the examination. In July 2019, the Veteran filed a substantive appeal but did not provide an explanation as to why he did not appear for the May 2019 VA PTSD examination.

When a claimant fails without good cause to report for a necessary examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(a), (b). Examples of good cause include the illness or hospitalization of the claimant, the death of an immediate family member, etc. The Veteran has not provided good cause for his failure to report to the scheduled VA examination. Although increased rating claims are denied if a Veteran fails to attend a scheduled examination without good cause, because the Veteran's claim is an initial rating claim and not an increased rating claim, the Board will consider it as an original compensation claim. Pursuant to section 3.655(b) when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Because good cause has not been established, the Veteran's claim will be decided based on the evidence of record.

Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD more nearly approximates a 70 percent rating. The VA and private psychiatric evaluations discussed above reveal that the Veteran's PTSD has been manifested by depression, anxiety, anger, impaired impulse control, lack of motivation, difficulty in establishing and maintaining relationships, tangential and irrelevant speech, and prior suicidal ideation. Some of these symptoms are specifically included in the 70 percent rating criteria under DC 9411 and more nearly approximate occupational and social impairment, with deficiencies in most areas. Accordingly, and resolving reasonable doubt in his favor, a 70 percent rating for PTSD is warranted for the rating period on appeal.

However, a disability rating higher than 70 percent is not warranted for the Veteran's service-connected PTSD. The evidence does not
PTSD more nearly approximates a 70 percent rating. The VA and private psychiatric evaluations discussed above reveal that the Veteran's PTSD has been manifested by depression, anxiety, anger, impaired impulse control, lack of motivation, difficulty in establishing and maintaining relationships, tangential and irrelevant speech, and prior suicidal ideation. Some of these symptoms are specifically included in the 70 percent rating criteria under DC 9411 and more nearly approximate occupational and social impairment, with deficiencies in most areas. Accordingly, and resolving reasonable doubt in his favor, a 70 percent rating for PTSD is warranted for the rating period on appeal.

However, a disability rating higher than 70 percent is not warranted for the Veteran's service-connected PTSD. The evidence does not more nearly approximate the criteria for a disability rating of 100 percent, as the evidence does not show functional impairment comparable to total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411; Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). "[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 116-17. There is no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; or disorientation to time or place attributable to the Veteran's PTSD. Although the November 2016 private psychologist noted that the Veteran experienced paranoia, psychotic thinking, and delusional thinking, the psychologist attributed these symptoms to bipolar disorder, and noted that bipolar disorder was a separate disorder, distinguishable from PTSD.

Additionally, the evidence does not show that the Veteran experienced other symptoms of a similar severity, frequency, or duration throughout the appeal period. Rather, the Veteran's symptoms are all contemplated by the rating criteria for a 70 percent or lower disability rating. Moreover, the record is unclear as to whether the Veteran's PTSD causes total social and occupational impairment. In that regard, the November 2016 private psychological report notes that the Veteran has only worked a couple of odd jobs for a few months at a time, that he has not worked since 2014, and that he experienced flashbacks, anger, and depression on the job. However, it is unclear whether his PTSD resulted in total occupational impairment, as the November 2016 examiner concluded that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas. Further, none of the evidence of record adequately discusses the impact of the Veteran's PTSD upon his social relationships. Nevertheless, as noted above, the Veteran failed to report for a scheduled VA examination in 2019 which may have shed more light on the social and occupational impairment caused by his PTSD. Based upon the current evidence of record, total occupational and social impairment is not demonstrated. Accordingly, an initial rating greater than 70 percent is not warranted.

2. Entitlement to an initial rating of 40 percent, but no greater, for lumbosacral strain is granted.

As an initial matter, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020).

The Veteran seeks a higher rating for his service-connected lumbosacral strain. His low back disability is currently rated 20 percent under DC 5237. See 38 C.F.R. § 4.71a, DC 5237. While portions of the rating schedule addressing the musculoskeletal system were revised, this diagnostic code was not changed.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is
primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Turning to the evidence of record, in July 2016, the Veteran submitted a copy of a June 2016 private medical opinion regarding the Veteran's back condition and his service-connected right knee condition. The examiner noted that the Veteran's low back pain did not radiate to his lower extremities and appeared to have developed after years of limping on his 'abnormal' knees. The examiner noted that the lack of knee flexion caused the Veteran to excessively flex his back to reach the floor when he is attempting to pick up objects, stoop, or get to the floor resulting in the use of more back motion than a normal individual and naturally causing degeneration and eventually arthritis in the back. No measurements of forward flexion were included.

In September 2017, the Veteran was afforded a VA back examination. A diagnosis of lumbosacral strain was noted. The Veteran described the pain as sharp, severe, and radiating to his hips, then to his lower legs, resulting in constant numbness and tingling. He denied flare-ups of low back symptoms, but reported functional impairment including difficulty walking and standing upright for short periods of time. Physical examination revealed an initial range of motion (ROM) with forward flexion to 50 degrees, extension to 25 degrees, right lateral flexion to 15 degrees, left lateral flexion to 30 degrees, and right and left lateral rotation to 20 degrees. Pain was noted during forward flexion, extension, and right lateral flexion, which did not result in/cause functional loss. There was objective evidence of severe tenderness or pain on palpation in the midback, and there was evidence of pain with weight bearing. The Veteran was unable to perform repetitive use testing with at least three repetitions due to pain. The examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups, but that an estimated range of motion following repetitive use over time or during flare-ups could not be provided because the Veteran was not evaluated after repeated use over time or during flare-ups. Physical examination also revealed muscle spasm and guarding resulting in abnormal gait or spinal contour, as the Veteran displayed an inability to ambulate due to spasms until they resolved. Additional factors contributing to disability included interference with standing, as the Veteran displayed an inability to ambulate due to spasms until they resolved. Muscle strength testing showed reduced muscle strength in the right and left lower extremities but no evidence of muscle atrophy. Reflexes were normal and sensation to light touch was normal. Straight leg raising tests were positive, and there was evidence of radiculopathy described as severe constant pain, paresthesias and/or dysesthesias, and numbness in both lower extremities affecting both the femoral and sciatic nerves in each lower extremity. There was no evidence of ankylosis and no evidence of intervertebral disc syndrome. The examiner concluded that the Veteran's lumbar spine disorder impacted his ability to work, as he was only able to walk or stand for a short amount of time and bending, turning, and squatting caused increased pain. The examiner also noted that there was objective evidence of pain when the back is used in non-weight bearing, but that there was no additional loss of motion. Further, passive range of motion was found to result in no additional loss of range of motion.

In March 2019, the Veteran was scheduled for a VA back examination. A May 2019 VA examination request notes that the examination was cancelled because the Veteran failed to appear. In July 2019, the Veteran filed a substantive appeal but did not provide an explanation as to
that the Veteran's lumbar spine disorder impacted his ability to work, as he was only able to walk or stand for a short amount of time and bending, turning, and squatting caused increased pain. The examiner also noted that there was objective evidence of pain when the back is used in non-weight bearing, but that there was no additional loss of motion. Further, passive range of motion was found to result in no additional loss of range of motion.

In September 2020, the Veteran was scheduled for a VA back examination. A February 2022 examination request notes that the examination was cancelled because the Veteran failed to appear. A March 2022 VA report of general information notes that VA contacted the February 2022 examiner to clarify if Veteran failed to appear for the examination due to Covid-19 concerns. The examiner noted that Covid-19 was not identified, and the Veteran simply did not appear.

When a claimant fails without good cause to report for a necessary examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(a), (b). Examples of good cause include the illness or hospitalization of the claimant, the death of an immediate family member, etc. The Veteran has not provided good cause for his failure to report to the scheduled VA examinations. Although increased rating claims are denied if a Veteran fails to attend a scheduled examination without good cause, because the Veteran's claim is an initial rating claim and not an increased rating claim, the Board will consider it as an original compensation claim. Pursuant to section 3.655(b) when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Because good cause has not been established, the Veteran's claim will be decided based on the evidence of record.

After thorough consideration of the evidence of record, the Board concludes that a 40 percent disability rating, but no higher, is warranted for the Veteran's lumbar spine disability. Review of the September 2017 VA examination reflects that, during flare-ups, the Veteran experienced muscle spasm which resulted in inability to ambulate until the spasm resolved. Although the evidence does not demonstrate ankylosis, the Board construes the inability to ambulate caused the muscle spasm flare-ups to result in functional impairment comparable to favorable ankylosis of the spine.

However, a higher rating greater than 40 percent is not warranted in the absence of evidence that the Veteran's lumbar spine disability exhibited unfavorable ankylosis. A 50 or 100 percent rating for spinal disease is only assigned with unfavorable ankylosis of the thoracolumbar spine. Unfavorable ankylosis is defined as a condition in which the entire thoracolumbar 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. However, review of the medical evidence of record does not reveal that the Veteran experiences any of these identified symptoms during his flare-ups resulting in the functional equivalent of ankylosis. Accordingly, an increased rating greater than 40 percent is not warranted for the Veteran's lumbar spine disability.

Although the Board must consider functional factors when determining the impairment manifested by orthopedic disabilities, the provisions of 38 C.F.R. § 4.40 and 4.45 are not for consideration where, as here, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Board cannot conclude that the Veteran's disability most nearly approximates ankylosis when he has clearly retained some useful motion of the thoracolumbar spine. The Board finds that the competent evidence of
when determining the impairment manifested by orthopedic disabilities, the provisions of 38 C.F.R. § 4.40 and 4.45 are not for consideration where, as here, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Board cannot conclude that the Veteran's disability most nearly approximates ankylosis when he has clearly retained some useful motion of the thoracolumbar spine. The Board finds that the competent evidence of record establishes that the Veteran's thoracolumbar spine was not ankylosed at any time during the appeal period.

Additionally, the Board has considered whether a separate evaluation is warranted for any neurological component of the Veteran's lumbar spine disability. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Although the medical evidence of record demonstrates findings of bilateral lower extremity radiculopathy, service connection is in effect for right and left lower extremity radiculopathy.

Accordingly, an increased rating of 40 percent, but no greater, is warranted for the Veteran's service-connected lumbar spine disability. An increased rating greater than 40 percent is not warranted for the Veteran's lumbar spine disability at any time during the pertinent appeal period.

Specially Adapted Housing and Special Home Adaptation

Specially adapted housing is available to veterans who have a service-connected disability rated as permanent and total due to amyotrophic lateral sclerosis or one of the following: (1) The loss or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) The loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) The loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (5) The loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or (6) Full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d).

Specially adapted housing may also be available to a veteran who served on or after September 11, 2001, who has a permanent disability that was incurred during such service, and which results in loss or loss of use of one or more extremities which so affects the functions of balance or propulsion as to preclude ambulating without the aids of braces, crutches, canes, or a wheelchair. See 38 U.S.C. § 2101(a)(2)(C).

If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees; such a disability need not be permanent and total in nature.

Additionally, a special home adaptation grant is available for a veteran that has a permanent and total disability which: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the trunk; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a(b).

1. Entitlement to a certificate of eligibility for SAH is denied
: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the trunk; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a(b).

1. Entitlement to a certificate of eligibility for SAH is denied.

2. Entitlement to a certificate of eligibility for a SHA grant is denied.

The Veteran contends that he is eligible for specially adapted housing or special home adaptation grant.

In this case, the Veteran is service-connected for right lower extremity radiculopathy, left lower extremity radiculopathy, PTSD, lumbosacral strain, right knee medial lateral instability, left knee medial lateral instability, right knee strain, left knee strain, and left foot metatarsalgia condition. None of these conditions qualify for specially adapted housing or special home adaption.

Although the Veteran has service-connected bilateral lower extremity radiculopathy, and bilateral knee disabilities, these conditions have not been shown to result in loss or loss of use of one or more extremities which so affects the functions of balance or propulsion as to preclude ambulating without the aids of braces, crutches, canes, or a wheelchair. The Board finds that the evidence of record does not support a claim for entitlement to specially adapted housing or a special home adaptation grant under 38 C.F.R. § 3.809 or 3.809a. As such, the claims are denied.

REASONS FOR REMAND

Entitlement to service connection for right foot metatarsalgia is remanded.

During a September 2017 VA examination, the Veteran reported that his right foot pain began when he started to compensate for his service-connected left foot disability. There is no opinion of record regarding the Veteran's assertion of secondary service connection. As such, the Board finds that a remand is necessary in order to properly adjudicate the Veteran's claim.

The matter is remanded for the following action:

Forward a copy of the Veteran's claims file and this REMAND to the appropriate examiner. After review of the record, if the examiner deems necessary, schedule the Veteran for a VA examination. The examiner should describe the nature and etiology of the Veteran's right foot condition.

The examiner is asked to opine as to whether it is at least as likely as not that the Veteran's right foot condition is proximately due to or the result of his service-connected left foot condition.

Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the right foot disorder was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition.

A complete rationale for all opinions must be provided. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions.

If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

MICHELLE P. KATZ

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Camille NeSmith, 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.

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