Southall-Norman v. McDonald, Opinion Number 15-1657,
decided December 15, 2016 involves a dispute over the proper effective date for
a foot disability and service connection for impairment of sphincter control.
After a long fight, the VA finally granted the veteran 50%
for flat feet with an effective date the date of the most recent compensation and
pension examination. The veteran sought
an initial compensable evaluation for her bilateral foot disability prior to
the date of the examination based on 38 CFR 4.59.
Section 4.59 is entitled “Painful motion” precedes the more
specific musculoskeletal Diagnostic Codes and states
With any form of arthritis, painful
motion is an important factor of disability, the facial expression, wincing,
etc., on pressure or manipulation, should be carefully noted and definitely
related to affected joints. Muscle spasm will greatly assist the identification.
Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent
of the schedule is to recognize painful motion with joint or periarticular
pathology as productive of disability. It is the intention to recognize
actually painful, unstable, or malaligned joints, due to healed injury, as
entitled to at least the minimum compensable rating for the joint. Crepitation
either in the soft tissues such as the tendons or ligaments, or crepitation
within the joint structures should be noted carefully as points of contact
which are diseased. Flexion elicits such manifestations. The joints involved
should be tested for pain on both active and passive motion, in weight-bearing
and nonweight-bearing and, if possible, with the range of the opposite
undamaged joint.
The Secretary argued 4.59 only applies to joint disability
where the DC predicates a range of motion measurement. The Court accepted the veteran’s argument and
noted the “Plain language … indicates that the regulation is not limited to the
evaluation of musculoskeletal disabilities under DCs predicated on range of
motion measurements.” The Court stated
In other words, Section 4.59 does not,
as the Secretary contends, condition the award of a minimum compensable
evaluation for a musculoskeletal disability on the presence of a range of
motion measurements in that DC; rather, it conditions that award on evidence of
an actually painful, unstable, or malaligned joint or periarticular region and
the presence of a compensable evaluation in the applicable DC. Thus, the plain language of Section 4.59
indicates that it is potentially applicable to the evaluation of
musculoskeletal disabilities involving joint or periarticular pathology that
are painful, whether or not evaluated under a DC predicated on range of motion
measurements.
The Court noted that even if Section 4.59 were ambiguous it
would rule the same and would not defer to the agency’s proffered
interpretation because it does not reflect the agency’s considered view on the
matter and pointed to oral argument admissions as well as two nonprecedential
decisions were the Secretary conceded the Board provided inadequate reasons or
bases for not discussing 4.59 in this context.
The Court then stated since Section 4.59 is applicable, the
Board had to address it in deciding whether the veteran was entitled to an
initial compensable evaluation and its failure to do so renders inadequate its
reasons or bases and specifically noted evidence as to painful motion.
Regarding sphincter impairment, the issue was fecal
leakage. The veteran argued the Board
provided inadequate reasons or bases for its decision that she was not entitled
to a separate compensable rating for impairment of sphincter control because it
found her board testimony regarding fecal leakage inconsistent with her prior
statements. Specifically, the Board
relied on a July 2007 VA examination where she said she had fecal leakage but
did not need to wear absorbent pads and her statement in October 2013 that 5-6
years ago she began to experience fecal leakage. The VA countered the Board made a proper
credibility based on numerous inconsistencies in her statements.
The Court agreed with the veteran. It noted one of the alleged inconsistencies
was the October 2013 and July 2007 statements, but then noted that this was not
actually an inconstancy because 5-6 years prior to October 2013 is after July
2007. The Court stated the Board’s
reasons or bases for impugning her credibility on that basis are
inadequate. The Court also noted the
Board failed to account for potentially favorable medical evidence in the
record. It also noted despite the 2011
examination finding of no impaired sphincter control, “the record is replete
with other evidence suggesting such impairment, which the Board improperly
discounted.”
The result was a remand on both issues. This opinion is really a tour de force in explaining
that Section 4.59 is not predicated on range of motion measurements and also a
text book opinion for eviscerating the Board’s decision and failure to make
adequate reasons or bases on multiple issues. It also, once again, shows the lengths the VA
will go to argue a losing interpretation of a regulation—they seem to think the
ability to interpret an regulation also includes the ability to ignore its
plain language. It is good to see the
Court digging into the VA’s flawed interpretations.
Written by Judge Bartley Davis and joined in by Judges Schoelen
and Greenberg.
