FINGER IMPAIRMENT OF

THOMAS L. ENGLISH · 2026 · Case ID: 26003666

MIXED

Summary

The veteran, who served in the United States Army from September 1977 to February 2007, including service recognized with a Bronze Star Medal, appeals a September 2008 rating decision. The Board of Veterans' Appeals granted an initial 10-percent evaluation for mallet finger of the left index finger, finding painful motion warranted this rating based on the veteran's reports of pain and resolving reasonable doubt in his favor. The Board also granted an initial 10-percent evaluation for hammer toes of the right foot, noting that all toes were affected unilaterally without claw foot, aligning with the criteria for this rating. Service connection for sleep apnea was granted, with the Board finding the evidence in approximate balance and resolving doubt in the veteran's favor, noting a 2007 service medical record suggesting possible obstructive sleep apnea and a 2024 diagnosis of mild obstructive sleep apnea. The case was remanded for further development on several other claims: a deviated septum due to an inadequate VA opinion using the wrong legal standard; gouty arthritis and other foot conditions due to inadequate nexus opinions lacking separate findings for causation and aggravation; neck, back, and right knee conditions due to inadequate VA examinations that failed to comply with specific testing requirements and did not properly account for pain or medication effects; and left lower extremity radiculopathy due to its inextricable intertwining with the back condition and the need for a separate neurological evaluation.

Rationale

Painful motion of left index finger; Resolving reasonable doubt in veteran's favor; DC 5229 criteria met

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5229

Docket No.

12-04 521

Full Decision Text

Citation Nr: 26003666
Decision Date: 03/20/26 Archive Date: 03/20/26

DOCKET NO. 12-04 521
DATE: March 20, 2026

ORDER

An initial 10-percent evaluation for mallet finger of the left index finger is granted.

An initial 10-percent evaluation for hammer toes of the right foot is granted.

Service connection for sleep apnea is granted.

REMANDED

Service connection for a deviated septum is remanded.

Service connection for gouty arthritis (to include any other bilateral foot condition not service connected) is remanded.

An initial evaluation in excess of 10 percent prior to November 13, 2019, for a neck condition is remanded.

An evaluation in excess of 20 percent from November 13, 2019, for a neck condition is remanded.

An initial evaluation in excess of 10 percent for a back condition is remanded.

An initial evaluation in excess of 10 percent for a right knee condition is remanded.

An initial evaluation in excess of 10 percent for left lower extremity (LLE) radiculopathy is remanded.

FINDINGS OF FACT

1. The Veteran experiences painful motion of his service-connected left index finger.

2. The Veteran has hammer toe, affecting the great, second, third, fourth, and little toes of the right foot.

3. Resolving reasonable doubt in his favor, the Veteran has a current diagnosis of sleep apnea that was incurred in or related to his active duty.

CONCLUSIONS OF LAW

1. The criteria for an initial 10-percent rating for residuals of mallet finger of the left index finger have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5229.

2. The criteria for an initial 10-percent rating for right foot hammer toes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5282.

3. The criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1977 to February 2007, to include a Bronze Star Medal.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Board of Veterans' Appeals (Board) remanded these matters for further development in February 2018, July 2022, and March 2023.

Increased Ratings

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.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.
Board acknowledges a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A claim will be denied if the evidence persuasively weighs against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

1. An initial 10-percent evaluation for mallet finger of the left index finger is granted.

The Veteran contends he is entitled to a compensable evaluation for his service-connected left index finger disability. Currently, his service-connected index finger disability of the left hand is evaluated as noncompensable from March 1, 2007, under DC 5229. Limitation of motion of individual digits are evaluated under 38 C.F.R. § 4.71a, DCs 5228 through 5230.

DC 5228 evaluates disabilities due to loss of motion of the thumb.

Under DC 5229 limitation of motion of the index (2nd finger) or longer (3rd or middle finger) warrants a noncompensable rating when there is a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. A maximum 10-percent rating is warranted of the major or minor extremity with a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees.

Under DC 5230 any limitation of motion of the ring (4th finger) or little (5th) finger warrants a noncompensable evaluation.

A compensable rating for ring or little finger disabilities requires amputation. See 38 C.F.R. § 4.71a, DCs 5155, 5156. Amputation of the ring and little fingers warrant a 10-percent rating without metacarpal resection at the proximal interphalangeal joint, or proximal thereto. A 20-percent rating is warranted with full metacarpal resection (more than one-half the bone lost). 38 C.F.R. § 4.71a, DCs 5155, 5156.

In order for ankylosis to be rated as amputation, the condition must manifest with extremely unfavorable ankylosis. See Note (3)(i) preceding 38 C.F.R. § 4.71a, DC 5216. In other words, in order to be evaluated as amputation, there must be ankylosis of both the metacarpophalangeal and proximal interphalangeal joints either in extension or full flexion or with rotation or angulation of a bone. Id.

DC 5227, which evaluates unfavorable or favorable ankylosis of the ring or little fingers, also only provides for a noncompensable evaluation. 38 C.F.R. § 4.71a, DC 5227. Therefore, even if ankylosis is shown, a higher disability rating cannot be assigned under such DC. With ankylosis, consideration must also be given to whether an additional evaluation is warranted for resulting limitation of motion of other digits or for interference with overall function of the hand. See Note following DC 5227.

Turning to the record of evidence, the Veteran received a VA examination in November 2019. The Veteran reported his mallet finger had straightened and is no longer deformed. He felt his finger was weaker than the rest of his fingers, and if he is doing a lot of gripping with his left hand, then
.F.R. § 4.71a, DC 5227. Therefore, even if ankylosis is shown, a higher disability rating cannot be assigned under such DC. With ankylosis, consideration must also be given to whether an additional evaluation is warranted for resulting limitation of motion of other digits or for interference with overall function of the hand. See Note following DC 5227.

On examination, a gap between the pad of the thumb and the fingers or a gap between the finger and proximal transverse crease of the hand on maximal finger flexion was not observed. Extension was not limited by more than 30 degrees. No pain was found on flexion or extension. The left index finger appeared normal with no evidence of a deformity of the mallet finger. No ankylosis was found. Amputation or no effective function remaining other than would be equally well served by an amputation with a prosthesis was not found.

A Hand and Finger Conditions Disability Benefits Questionnaire was received in November 2022. The Veteran reported the distal joint of his left index finger was weak and exhibited pain when he bends it. He further reported his left index finger fatigues when he exercises. He denied treatment other than using hand strengthening devices.

On examination, a gap between the pad of the thumb and the fingers or a gap between the finger and proximal transverse crease of the hand on maximal finger flexion was not observed. Extension was not limited by more than 30 degrees. No ankylosis was found. Amputation or no effective function remaining other than would be equally well served by an amputation with a prosthesis was not found.

A January 2024 Hand and Fingers Disability Benefit Questionnaire indicates the Veteran reported mild numbness of the tip of his fingers with no weakness and no pain. No objective evidence of localized tenderness or pain on palpation of the joint was found. Mild sensory loss on the tip of the left index finger was documented.

On examination, a gap between the pad of the thumb and the fingers or a gap between the finger and proximal transverse crease of the hand on maximal finger flexion was not observed. Extension was not limited by more than 30 degrees. No ankylosis was found. Amputation or no effective function remaining other than would be equally well served by an amputation with a prosthesis was not found.

The Board finds an initial 10-percent rating is warranted for the Veteran's service-connected left index finger disability. In this regard, the Board acknowledges that findings from the January 2024 VA exam did not document pain of the Veteran's service-connected left hand finger disability. However, the Board acknowledges the Veteran is competent to report pain in his left index finger, and the medical records outlined above clearly reflect his complaints of finger pain, particularly with repeated use over time. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Board finds that in consideration of the Veteran's reports of finger pain, and by resolving reasonable doubt in his favor, an initial 10-percent disability rating is warranted for painful motion of his service-connected left index finger under DC 5229. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Accordingly, a 10-percent rating for painful motion of the left index finger is granted. 38 C.F.R. §§ 4.59, 4.71a, DC 5229. The record does not suggest any impairment beyond that contemplated by this 10-percent rating.

In sum, the Board finds an initial compensable rating of 10 percent, but no higher, is granted for the Veteran's service-connected left index finger is warranted.

2. An initial 10-percent evaluation for hammer toes of the right foot is granted.

The Veteran contends symptoms associated with his service-connected right foot hammer toes are worse than his current noncompensable evaluation contemplates. For the reasons outlined below, the Board agrees and finds a 10-percent evaluation is warranted.

During the period on appeal, the Veteran is in receipt of a noncompensable rating for his right foot hammer toes, pursuant to DC 5282, from March 1, 2007.

DC 5282 provides ratings for hammer toes. A non
, the Board finds an initial compensable rating of 10 percent, but no higher, is granted for the Veteran's service-connected left index finger is warranted.

2. An initial 10-percent evaluation for hammer toes of the right foot is granted.

During the period on appeal, the Veteran is in receipt of a noncompensable rating for his right foot hammer toes, pursuant to DC 5282, from March 1, 2007.

DC 5282 provides ratings for hammer toes. A noncompensable rating is warranted when single toes are affected. A 10-percent rating is warranted when all toes are affected unilaterally without claw foot. 38 C.F.R. § 4.71a.

The Board finds a 10-percent evaluation under DC 5282 is warranted. Specifically, the November 2022 VA Foot Conditions Disability Benefits Questionnaire notes hammer toes of the great toe, second, toe, third toe, fourth toe, and little toe. Claw foot was not diagnosed by the VA examiner. Thus, as all toes are affected unilaterally without claw foot, a 10-percent maximum rating is warranted under DC 5282.

Although 10 percent is the maximum rating available for hammertoes, the Board must consider the assignment of an increased evaluation under other potentially applicable codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Notably, the Veteran has not been diagnosed with weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, or malunion of the tarsal or metatarsal bones. As such, DCs 5277, 5278, 5279, 5280, 5281, and 5283 are inapplicable.

It has been held when a condition is specifically listed in the Schedule, it may not be rated by analogy under DC 5284. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). DC 5284 refers to "other" foot injuries and applies to foot disabilities for which there is not already a specific DC. It is appropriate to consider DC 5284 when the disability is related to the results of an injury. See Yancy v. McDonald, 27 Vet. App. 484, 493 (2016) (the plain meaning of the word "injury" limits the application of DC 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions). Thus, "[u]nder Copeland and Yancy, the Board is obligated to consider analogous DCs, including DC 5284, when rating unlisted conditions, despite the presence of listed conditions." Scott v. Wilkie, 920 F.3d 1375, 1379 (Fed. Cir. 2019).

Here, however, the Board finds DC 5284 is also inapplicable as a review of the medical evidence does not show any "other" foot injuries that could be applicable under DC 5284.

In addition to all the evidence of record, the Board has considered the Veteran's statements in determining the appropriate disability ratings during the periods on appeal. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his right foot disabilities according to the appropriate DCs. Layno v. Brown, 6 Vet. App. 465, 469 (1994).

On the other hand, such competent evidence concerning the nature and extent of the Veteran's right foot disabilities have been provided by the medical personnel who examined him during the current appeal and who have rendered pertinent opinions in conjunction with their evaluations. The medical findings of the physicians who performed the private examination directly address the criteria under which this disability is evaluated. Since the examiners were able to review the medical file and examine the Veteran, the Board finds the examiners' assessments of greater probative weight.

In sum, the Board finds an initial 10-percent rating, but no higher, for right foot hammer toes is for application. To that extent, the appeal is granted.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (1) the existence of a present
of the physicians who performed the private examination directly address the criteria under which this disability is evaluated. Since the examiners were able to review the medical file and examine the Veteran, the Board finds the examiners' assessments of greater probative weight.

In sum, the Board finds an initial 10-percent rating, but no higher, for right foot hammer toes is for application. To that extent, the appeal is granted.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

A claim will be denied if the evidence persuasively weighs against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch, supra. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 3.102.

3. Service connection for sleep apnea is granted.

The Veteran contends service connection is warranted for his sleep apnea. As to a current diagnosis, a sleep test was completed in February 2024, which indicates a diagnosis of mild obstructive sleep apnea.

As to an in-service event, February 2007 service medical records indicate a physician noting the Veteran was a chronic snorer who wakes up gasping for air, and there was a chance the Veteran had obstructive sleep apnea.

Affording the benefit of the doubt to the Veteran, the evidence is at least in approximate balance that his current sleep apnea began during and is etiologically related to active service.

Regarding this, the Veteran was diagnosed with mild obstructive sleep apnea, and his service medical records indicate possible obstructive sleep apnea. Further, the January 2024 Sleep Apnea Disability Benefits Questionnaire documents a date of onset of 2007 with sleep-related symptoms that have stayed the same.

Accordingly, resolving reasonable doubt in the Veteran's favor, service connection for sleep apnea is granted on a direct basis.

REASONS FOR REMAND

1. Service connection for a deviated septum is remanded.

As to whether service connection is warranted for a deviated septum, the Board finds the January 2024 opinion is inadequate as the VA examiner used the wrong legal standard as they state it "is less likely as not" instead of "clearly and unmistakably."

The Board notes the clear and unmistakable evidence standard is a much more formidable evidentiary burden to meet than the persuasive-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting, the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the persuasive-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)).

Therefore, a remand is warranted for an addendum opinion that applies the correct legal standard.

2. Service connection for gouty arthritis (to include any other bilateral foot condition not service connected) is remanded.

As to whether service connection is warranted for gouty arthritis, VA obtained a nexus opinion in January 2024. The VA examiner finds the Veteran's gout was not aggravated or worsened by the Veteran's service-connected psoriasis since these conditions are unrelated to each other.

A supplemental opinion was obtained in August 2024. The examiner finds there is no relation to gout and psoriatic arthritis since they are two separate conditions.

The Board does not find the above opinions to be probative because the examiner did not provide separate opinions for causation and aggravation. The Court has held causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018).

As
obtained a nexus opinion in January 2024. The VA examiner finds the Veteran's gout was not aggravated or worsened by the Veteran's service-connected psoriasis since these conditions are unrelated to each other.

A supplemental opinion was obtained in August 2024. The examiner finds there is no relation to gout and psoriatic arthritis since they are two separate conditions.

As such, on remand, the VA examiner must provide separate and sufficient findings and rationales relating to causation and aggravation.

3. An initial evaluation in excess of 10 percent prior to November 13, 2019, for a neck condition is remanded.

4. An evaluation in excess of 20 percent from November 13, 2019, for a neck condition is remanded.

While the record contains a VA cervical spine examination from January 2024, for the following reasons, the Board finds the examination to be inadequate.

First, the examination does not comply with Correia v. McDonald, 28 Vet. App. 158 (2016). Correia mandates certain examinations include the testing described in 38 C.F.R. § 4.59 or an explanation as to why such testing is unwarranted or impossible. The Board observes the January 2024 examination does not include all the following: active range-of-motion testing results, passive range-of-motion testing results, weightbearing range-of-motion testing results, and nonweightbearing range-of-motion testing results. Specifically, the examination report does not include weightbearing range-of-motion testing results and nonweightbearing range-of-motion testing results or an explanation as to why such testing is unwarranted or impossible. 38 C.F.R. § 4.59 ("The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweightbearing and, if possible, with the range of the opposite undamaged joint.").

Further, the Board acknowledges the January 2024 examiner found objective evidence of pain on forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation of the cervical spine on active motion. However, the examiner did not note where within the range of motion that the Veteran began to exhibit pain. The Court has found examination findings to be inadequate because the examiner did not explicitly report "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Court stressed such a finding is important in providing a "clear picture of the nature of the veteran's disability and the extent to which pain is disabling" to "allow the Board to ensure that the disabling effects of pain are properly considered when evaluating any functional loss due to pain that is attributable to the veteran's disability." Id.

Additionally, the Board observes the January 2024 examination does not provide the information required by Sharp v. Shulkin, 29 Vet. App. 26 (2017). Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran's own statements. If an estimate cannot be provided without resorting to speculation, it must be clear whether this is due to a lack of knowledge among the medical community or insufficient knowledge of the specific examiner.

Specifically, while the January 2024 examiner did not find flare-ups, the examination report indicates flare-ups occur because the examiner states the Veteran experiences neck pain at a 4 out of a 10 and aching pain at times at a 10 out of a 10, especially with certain movements.

Finally, in Jones v. Shinseki, the Court held the Board may not consider the ameliorative effects of medication when assigning a disability evaluation when those effects are not explicitly contemplated by the rating criteria. 26 Vet. App. 56, 61 (2012). Recently, in Ingram v. Collins, the Court reaffirmed its central holding in Jones and held the Board must discount the beneficial effects of medication when assigning a rating for a musculoskeletal disability because the applicable DCs and regulations pertaining to musculoskeletal disabilities do
the examiner states the Veteran experiences neck pain at a 4 out of a 10 and aching pain at times at a 10 out of a 10, especially with certain movements.

Finally, in Jones v. Shinseki, the Court held the Board may not consider the ameliorative effects of medication when assigning a disability evaluation when those effects are not explicitly contemplated by the rating criteria. 26 Vet. App. 56, 61 (2012). Recently, in Ingram v. Collins, the Court reaffirmed its central holding in Jones and held the Board must discount the beneficial effects of medication when assigning a rating for a musculoskeletal disability because the applicable DCs and regulations pertaining to musculoskeletal disabilities do not explicitly contemplate medication use. 30 Vet. App. 130 (2025).

The Board observes the January 2024 examination report indicates the Veteran takes Tylenol and Meloxicam. However, while the examiner notes the Veteran's use of medication in the examination report, the examiner does not indicate whether their examination findings as to the severity of the Veteran's cervical spine disability, including the range of motion measurements provided, discounts the ameliorative effects of the medications.

Accordingly, a remand is warranted for an examination that complies with Correia, Mitchell, Sharp, and Ingram. Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate).

5. An initial evaluation in excess of 10 percent for a back condition is remanded.

While the record contains a VA back examination from January 2024, for the following reasons, the Board finds the examination to be inadequate.

First, the examination does not comply with Correia. Specifically, the January 2024 examination report does not include weightbearing range-of-motion testing results and nonweightbearing range-of-motion testing results or an explanation as to why such testing is unwarranted or impossible. 38 C.F.R. § 4.59 ("The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweightbearing and, if possible, with the range of the opposite undamaged joint.").

Additionally, the Board observes the January 2024 examination does not provide the information required by Sharp. Specifically, while the examiner did not find flare-ups, the examination report indicates flare-ups occur because the examiner states the Veteran experiences functional loss or functional impairment in the form of a limit to walking and standing, which indicates the Veteran's service-connected back condition exacerbates with repeated use over time. Sharp, 29 Vet. App. at 34-36.

Finally, the Board observes the January 2024 examination report indicates the Veteran takes gabapentin, Meloxicam, Tylenol, and methocarbamol. However, while the examiner notes the Veteran's use of medication in the examination report, the examiner does not indicate whether their examination findings as to the severity of the Veteran's back disability, including the range of motion measurements provided, discounts the ameliorative effects of the medications. Ingram, supra.

Accordingly, a remand is warranted for an examination that complies with Correia, Mitchell, Sharp, and Ingram. Barr, supra.

6. An initial evaluation in excess of 10 percent for a right knee condition is remanded.

While the record contains a VA knee examination from January 2024, for the following reasons, the Board finds the examination to be inadequate.

Further, the Board acknowledges the January 2024 examiner found objective evidence of pain with flexion of the right knee on active and passive motion. However, the examiner did not note where within the range of motion that the Veteran began to exhibit pain. Mitchell, supra.

Additionally, the Board observes the January 2024 examination does not provide the information required by Sharp.
nonweightbearing range-of-motion testing results or an explanation as to why such testing is unwarranted or impossible. 38 C.F.R. § 4.59 ("The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweightbearing and, if possible, with the range of the opposite undamaged joint.").

Additionally, the Board observes the January 2024 examination does not provide the information required by Sharp. Specifically, while the examiner did not find flare-ups occur, the medical record indicates flare-ups occur because a March 2023 VA knee examination reflects the Veteran reported having problems with walking due to pain in his right knee. Thus, a remand is necessary to obtain a VA examination sufficient for rating purposes that clarifies whether the Veteran experiences loss of range of motion during flare-ups or with repeated use over time based on his lay statements of limitations with repeated use over time. Sharp, 29 Vet. App. at 34-36.

Finally, the Board observes the January 2024 examination report indicates the Veteran takes Tylenol. However, while the examiner notes the Veteran's use of medication in the examination report, the examiner does not indicate whether their examination findings as to the severity of the Veteran's right knee disability, including the range of motion measurements provided, discounts the ameliorative effects of the medications. Ingram, supra.

Accordingly, a remand is warranted for an examination that complies with Correia, Mitchell, Sharp, and Ingram. Barr, supra.

7. An initial evaluation in excess of 10 percent for LLE radiculopathy is remanded.

While the Board indicates in its March 2023 remand that the Veteran's LLE radiculopathy is inextricably intertwined with the Veteran's back condition, and as such, entitlement to an increased rating must be remanded, considering the most recent neurological examination is from November 2022, as this issue is being remanded once more as being inextricably intertwined with the Veteran's back condition, the RO should obtain a VA neurological examination to separately evaluate the radiculopathy of the LLE with findings specific to this disability or that correspond to the appropriate DC.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claims.

Deviated Septum

2. The AOJ should obtain an addendum opinion as to the etiology of the Veteran's deviated septum from an examiner different than who provided the previous opinions.

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements.

Following a review of the record, to include the Veteran's lay statements as well as any other evidence that may be added to the record concerning onset and recurrence of symptomatology, the examiner should provide an opinion as to the following:

(a.) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show the Veteran's deviated septum existed prior to his entry onto active duty?

(b.) If the answer to (a) is yes, does the evidence of record clearly and unmistakably (i.e., it is undebatable) show the Veteran's deviated septum was not aggravated by service?

(c.) If the answer to either (a.) or (b.) is in the negative, the examiner should state whether it is approximately at least as likely as not (an approximate balance of positive and negative evidence) the Veteran's deviated septum manifested in or is otherwise related to his active service.

In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The opinions must reflect consideration of the Veteran's reports as to his history and symptomatology.

If an opinion cannot be provided without resorting to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large or insufficient knowledge of the specific examiner. The examiner must explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided.

The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached.

Gouty Arthritis or Other Bilat Foot Conditions

3. The AOJ should obtain an addendum opinion for the claims for service connection for gouty arthritis of the lower extremities from an examiner different than who provided the previous opinions.

The examiner is requested to review all pertinent records associated
symptomatology.

The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached.

Gouty Arthritis or Other Bilat Foot Conditions

3. The AOJ should obtain an addendum opinion for the claims for service connection for gouty arthritis of the lower extremities from an examiner different than who provided the previous opinions.

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements.

(a.) The examiner should state all non-service-connected diagnoses related to the bilateral feet to include those affected by gout.

(b.) For each diagnosis, is it approximately at least as likely as not (an approximate balance of positive and negative evidence) any gouty arthritis of the lower extremities or other foot disability had its onset during active service or is related to any incident of service.

(c.) If the answer to (b.) is in the negative, is it approximately at least as likely as not (an approximate balance of positive and negative evidence) any gouty arthritis of the lower extremities or other foot disability was caused (in whole or in part) by the Veteran's service-connected psoriatic arthritis or service-connected psoriasis?

NOTE: The examiner is advised all that is needed is a "but for" causation.

In other words, would the Veteran have developed gout or a foot disability "but for" his service-connected psoriatic arthritis or service-connected psoriasis (to include the manifestations of these service-connected conditions) either because there was an etiological link (to include worsening of functionality) between the conditions or these service-connected conditions resulted in an inability to effectively treat the Veteran's gout or foot disability.

(d.) If the answer to (c.) is in the negative, is it approximately at least as likely as not (an approximate balance of positive and negative evidence) the Veteran's gout or other foot disability was aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by the Veteran's service-connected psoriatic arthritis or service-connected psoriasis?

NOTE: The examiner is advised all that is needed is a "but for" aggravation.

In other words, would the Veteran's gout or foot disability have been less severe "but for" his service-connected psoriatic arthritis or service-connected psoriasis (to include the manifestations of these service-conditions) either because there was an etiological link (to include worsening of functionality) between the conditions or the service-connected conditions resulted in an inability to effectively treat the Veteran's gout or foot disability?

The examiner must provide separate opinions and rationales for secondary causation and secondary aggravation. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018).

The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached.

Orthopedic Claims

4. Schedule the Veteran for an appropriate VA examination to assess his service-connected orthopedic disabilities - i.e., neck, back, and right knee.

The Veteran's claims file must be made available to and reviewed by the examiner in conjunction with the examinations. The examiner must note in the examination reports that the evidence in the claims file was reviewed.

The appropriate Disability Benefits Questionnaires should be filled out.

The examiner must include all the following:

(a.) Active range-of-motion testing results,

(b.) Passive range-of-motion testing results,

(c.) Weightbearing range-of-motion testing results, and

(d.) Nonweightbearing range-of-motion testing results.

If the examiner is unable to conduct one or more of the above tests or finds it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e., active or passive, weightbearing
right knee.

The appropriate Disability Benefits Questionnaires should be filled out.

The examiner must include all the following:

(a.) Active range-of-motion testing results,

(b.) Passive range-of-motion testing results,

(c.) Weightbearing range-of-motion testing results, and

(d.) Nonweightbearing range-of-motion testing results.

The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and their effect on functioning, to include precipitating and alleviating factors and the degree of functional loss during flare-ups.

If the examination is not being performed immediately after repetitive use over time or during a flare-up, the examiner must provide an estimate, when discounting the ameliorative effects of any medication taken to treat the condition, of the degrees of any additional loss in range of motion with repeated use over time or during flare-ups, based on the Veteran's description of functional loss during flare-ups, a review of his medical history, and the examination findings.

If it is impossible 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).

If the Veteran experiences pain on examination of the joint, the examiner must note where within the range of motion that pain begins.

The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached.

LLE Radiculopathy

5. Schedule the Veteran for a VA neurological examination to determine the nature and severity of his service-connected LLE radiculopathy.

The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report the evidence in the claims file has been reviewed.

The appropriate Disability Benefits Questionnaire should be filled out.

The examiner should describe the severity, frequency, and duration of all symptoms associated with the Veteran's service-connected radiculopathy to include that of any other neurological manifestations of the Veteran's service-connected neck and back conditions.

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached.

Thomas L. English

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Buck Denton

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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