Veteranclaims’s Blog

January 8, 2017

Southall-Norman v. McDonald, No. 15-1357(Argued July 26, 2016 Decided December 15, 2016); 38 C.F.R. § 4.59; Applicability to Musculoskeletal Disability Not Predicated on Range of Motion;

Excerpt from decision below:

“Veteran Crystal D. Southall-Norman appeals through counsel a January 5, 2015, Board of Veterans’ Appeals (Board) decision denying entitlement to an initial compensable disability evaluation for a bilateral foot disability, to include hallux valgus1 and pes planus, prior to June 2, 2014; and a separate evaluation for impairment of sphincter control related to service-
1″Hallux valgus” is “medial deviation of the first metatarsal and lateral deviation of the great toe,” which “can lead to painful motion of the joint and shoe wear difficulty.” Hallux Valgus, AM. ORTHOPAEDIC FOOT & ANKLE SOC’Y,
http://www.aofas.org/PRC/conditions/Pages/Conditions/Hallux-Valgus.aspx (last visited Oct. 27, 2016). “The structures directly involved in a hallux deformity include the first metatarsophalangeal (MTP) joint, the abductor and adductor
hallicus tendons, the hallucal sesamoid complex, the medial and lateral MTP joint capsules, the first tarsometatarsal joint and the gastrocsoleus complex.” Id.; see DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 818 (32d ed. 2012)
[hereinafter DORLAND’S] (defining “hallux valgus” as “angulation of the great toe away from the midline of the body, or toward the other toes; the great toe may ride under or over the other toes”).

connected hemorrhoids. Record (R.) at 2-20.2 This matter was referred to a panel of the Court, with oral argument, to address whether the Board is required to consider and apply 38 C.F.R. § 4.59 when evaluating a musculoskeletal disability under a diagnostic code (DC) that is not predicated on range of motion measurements. For the reasons that follow, the Court will set aside the portions of the January 5, 2015, Board decision denying entitlement to an initial compensable evaluation for a bilateral foot disability prior to June 2, 2014, and a separate evaluation for impairment of sphincter control and remand those matters for readjudication consistent with this decision.”

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 15-1357
CRYSTAL D. SOUTHALL-NORMAN, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued July 26, 2016 Decided December 15, 2016)
Christian A. McTarnaghan, with whom Michael S. Just was on the brief, both of Providence, Rhode Island, for the appellant.
Omar Yousaf, with whom Leigh A. Bradley, General Counsel; Mary Ann Flynn, Chief
Counsel, and Kenneth A. Walsh, Deputy Chief Counsel, were on the brief, all of Washington, D.C., for the appellee.

Before SCHOELEN, BARTLEY, and GREENBERG, Judges.

BARTLEY, Judge: Veteran Crystal D. Southall-Norman appeals through counsel a January 5, 2015, Board of Veterans’ Appeals (Board) decision denying entitlement to an initial compensable disability evaluation for a bilateral foot disability, to include hallux valgus1 and pes planus, prior to June 2, 2014; and a separate evaluation for impairment of sphincter control related to service-
1″Hallux valgus” is “medial deviation of the first metatarsal and lateral deviation of the great toe,” which “can lead to painful motion of the joint and shoe wear difficulty.” Hallux Valgus, AM. ORTHOPAEDIC FOOT & ANKLE SOC’Y,
http://www.aofas.org/PRC/conditions/Pages/Conditions/Hallux-Valgus.aspx (last visited Oct. 27, 2016). “The structures directly involved in a hallux deformity include the first metatarsophalangeal (MTP) joint, the abductor and adductor
hallicus tendons, the hallucal sesamoid complex, the medial and lateral MTP joint capsules, the first tarsometatarsal joint and the gastrocsoleus complex.” Id.; see DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 818 (32d ed. 2012)
[hereinafter DORLAND’S] (defining “hallux valgus” as “angulation of the great toe away from the midline of the body, or toward the other toes; the great toe may ride under or over the other toes”).

connected hemorrhoids. Record (R.) at 2-20.2 This matter was referred to a panel of the Court, with oral argument, to address whether the Board is required to consider and apply 38 C.F.R. § 4.59 when evaluating a musculoskeletal disability under a diagnostic code (DC) that is not predicated on range of motion measurements. For the reasons that follow, the Court will set aside the portions of the January 5, 2015, Board decision denying entitlement to an initial compensable evaluation for a bilateral foot disability prior to June 2, 2014, and a separate evaluation for impairment of sphincter control and remand those matters for readjudication consistent with this decision.

I. FACTS
Ms. Southall-Norman served on active duty in the U.S. Marine Corps from February 2000
to October 2007. R. at 23. While in service, she filed a June 2007 claim for service connection for,
inter alia, a bilateral foot disability and hemorrhoids, R. at 1137-47, and underwent a July 2007 VA
general medical examination, R. at 1086-92. She reported persistent hemorrhoids with fecal leakage
“occur[ring] less than 1/3 of the day in small amounts,” but indicated that “a pad [was] not needed.”
R. at 1087. She also reported bunions on both feet, which caused constant, localized pain
exacerbated by physical activity and wearing high heels. Id. A physical examination of the feet
revealed tenderness bilaterally, but no pain on motion. R. at 1090. The examiner diagnosed
persistent hemorrhoids with rectal pain and bilateral hallux valgus with pain on prolonged standing
and wearing high heels. R. at 1092. Shortly after service, at a December 2007 private medical
appointment, Ms. Southall-Norman reported hemorrhoid pain and a “small amount of pus and blood
with wiping only,” but denied bloody stools. R. at 935.
In March 2008, a VA regional office (RO) granted service connection for bilateral hallux
valgus and external hemorrhoids and assigned noncompensable evaluations for those conditions
under 38 C.F.R. §§ 4.71a, DC 5280 (hallux valgus), and 4.114, DC 7336 (hemorrhoids, external or
internal), respectively, effective October 10, 2007, the day after separation from service. R. at 1065-
2The Board also denied entitlement to an initial evaluation in excess of 50% for a bilateral foot disability, to
include hallux valgus and pes planus, since June 2, 2014, and an initial evaluation in excess of 10% for hemorrhoids.
R. at 7-9, 18-19. Because Ms. Southall-Norman has declined to challenge those portions of the Board decision, the
appeal as to those issues will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc)
(declining to review the merits of an issue not argued on appeal and dismissing that portion of the appeal); Cacciola v.
Gibson, 27 Vet.App. 45, 48 (2014) (same).
2
84. Ms. Southall-Norman timely disagreed with the assigned evaluations, asserting, inter alia, that
she has “[e]xternal hemorrhoids [with] constant bleeding or leaking.” R. at 1055. In November
2008, she submitted a statement that her external hemorrhoids “leave[] horrible stains in [her]
under[]garments” and were “constantly oozing pus or bleeding,” R. at 1039. The RO issued a
Statement of the Case in September 2009 denying compensable evaluations for both conditions, R.
at 817-37, and the veteran perfected her appeal to the Board in November 2009, R. at 815-16.
In August 2011, Ms. Southall-Norman was afforded a VA rectal examination and complained
of rectal pain, swelling, and bleeding. R. at 795. The examiner did not find impairment of sphincter
control or fecal leakage. R. at 796-97.
The next month, the veteran underwent a VA foot examination and reported bilateral foot
pain and cramping when standing and walking. R. at 764. A physical examination revealed bilateral
forefoot pain on manipulation, but no additional functional loss due to pain, R. at 765, and x-rays
showed no significant bone or joint abnormality and unremarkable soft tissues, R. at 768. The
diagnosis was bilateral hallux valgus and pes planus. R. at 766.
In October 2013, Ms. Southall-Norman testified at a Board hearing that she experienced
constant bilateral foot pain, including while standing and walking and when at rest. R. at 1183. She
also stated that, five or six years earlier, her hemorrhoid condition worsened and started causing fecal
leakage and that she has been wearing pads every day since then to prevent staining. R. at 1185-87.
In February 2014, the Board issued a decision that granted a 10% initial evaluation, but no
higher, for hemorrhoids, and remanded the claim for an initial compensable evaluation for a bilateral
foot disability to obtain another VA examination. R. at 592-605. Ms. Southall-Norman appealed
the denial of a higher hemorrhoid evaluation and, in October 2014, the Court granted a joint motion
for remand (JMR) in which the parties stipulated that the Board had erred in failing to consider
whether the veteran was entitled to a separate evaluation for loss of sphincter control. R. at 470-75.
The JMR noted the veteran’s reports of fecal leakage at the July 2007 VA examination and the
October 2013 Board hearing and directed the Board to address the credibility and probative value
of those reports in light of the fact that the DC for impairment of sphincter control, 38 C.F.R.
§ 4.114, DC 7332, “does not explicitly require that leakage be confirmed by objective findings.” R.
at 472.
3
In the meantime, in June 2014, Ms. Southall-Norman was afforded a VA foot examination
pursuant to the February 2014 Board remand. R. at 571-76. She reported bilateral foot pain on
weight-bearing, R. at 572, which was confirmed by a physical examination, R. at 574. The examiner
diagnosed bilateral hallux valgus and pes planus, R. at 571, and opined that it was at least as likely
as not that bilateral pes planus was etiologically related to the service-connected bilateral hallux
valgus, R. at 576. Based on that examination, the RO in September 2014 added bilateral pes planus
to the veteran’s current service-connected bilateral foot disability and assigned a 50% evaluation
under § 4.71a, DC 5276 (flatfoot, acquired), effective June 2, 2014, the date of the examination. See
R. at 3.3
The case was subsequently returned to the Board and, in January 2015, it issued the decision
currently on appeal. R. at 2-20. Regarding the bilateral foot disability, the Board found that the
evidence of record did not establish entitlement to a compensable evaluation prior to June 2, 2014,
under either DC 5276 or 5280 because, during that period, her pes planus manifested in mild
symptoms relieved by built-up shoe or arch support and her hallux valgus was mild or moderate and
did not require surgery. R. at 17-18. Although the Board considered the veteran’s complaints of
pain, R. at 18, it did not mention § 4.59 in evaluating her bilateral foot disability.
As to hemorrhoids, the Board found that Ms. Southall-Norman was not entitled to a separate
evaluation for sphincter impairment because her reports of fecal leakage were inconsistent
throughout the claim period and contradicted by the medical evidence of record. R. at 10-11. The
Board also noted that Ms. Southall-Norman did not always differentiate between fecal leakage and
other types of leakage and found that, to the extent that her complaints related solely to fecal leakage,
they were insufficient to demonstrate constant slight or occasional moderate fecal leakage required
for a compensable evaluation under DC 7332. R. at 11-12. This appeal followed.
3The record before the Court does not contain a copy of the September 2014 RO decision.
4
II. ANALYSIS
A. Bilateral Foot Disability
Ms. Southall-Norman argues that the Board provided inadequate reasons or bases for denying
an initial compensable evaluation for her bilateral foot disability prior to June 2, 2014, because it
failed to discuss § 4.59, even though the record contained evidence of foot pain on weight bearing,
walking, standing, and manipulation. Appellant’s Brief (Br.) at 6-10. The Secretary disputes this
contention and asserts that the Board was not required to address § 4.59 because it only applies when
evaluating a joint disability under a DC predicated on range of motion measurements, and DCs 5276
and 5280 do not mention range of motion. Secretary’s Br. at 7-10. The Secretary alternatively
argues that, to the extent that § 4.59 is ambiguous on this point, the Court should defer to his
reasonable interpretation of that regulation as set forth in the VA Adjudication Procedures Manual
(M21-1), pt. III, subpt. iv, ch. 4, § A(1)(m), and its predecessors. Id. at 7-9. He also contends that,
even if § 4.59 were broadly applicable to the evaluation of all musculoskeletal disabilities regardless
of the content of the relevant DCs, the medical evidence of record in this case does not reflect painful
motion sufficient to entitle the veteran to a compensable evaluation for her bilateral foot disability.
Id. at 10-11. Ms. Southall-Norman responds that the Secretary’s interpretation of § 4.59 is
inconsistent with the regulation’s plain language, which does not contain any limitation as to its
applicability. Reply Br. at 1-2. In the alternative, she argues that the Secretary’s proffered
interpretation is not entitled to deference because it does not reflect his considered view on the
matter, as evinced by the contrary positions taken by the Secretary at oral argument in Petitti v.
McDonald, 27 Vet.App. 415 (2015), and in Ebron v. Shinseki, No. 13-1296, 2014 WL 1778434 (Vet.
App. May 6, 2014) (mem. dec.), and Davis v. Shinseki, No. 12-2013, 2013 WL 6622931 (Vet. App.
Dec. 17, 2013) (mem. dec.). See July 18, 2016, Notices of Supplemental Authority.
The parties’ dispute comes down to the proper interpretation of § 4.59 and, therefore, we must
begin with an examination of the language of that regulation. See Good Samaritan Hosp. v. Shalala,
508 U.S. 402, 409 (1993) (“The starting point in interpreting a statute [or regulation] is its
language.”); Petitti, 27 Vet.App. at 422 (“Regulatory interpretation begins with the language of the
regulation, the plain meaning of which is derived from its text and its structure.”). If the plain
meaning of § 4.59 is clear from its language, then that meaning controls and “that is ‘the end of the
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matter.'” Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006) (quoting Brown v. Gardner, 513 U.S.
115, 120 (1994)); see Pacheco v. Gibson, 27 Vet.App. 21, 25 (2014) (en banc). If, however, the
language is ambiguous, then the Court must defer to the agency’s interpretation of its regulation
unless that interpretation is inconsistent with the language of the regulation, is otherwise plainly
erroneous, or does not represent the agency’s considered view on the matter. See Auer v. Robbins,
519 U.S. 452, 461-62 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); Smith
v. Nicholson, 451 F.3d 1344, 1349 (Fed. Cir. 2006); Petitti, 27 Vet.App. at 423.
Section 4.59 “concerns painful motion of the musculoskeletal system generally,” Correia v.
McDonald, 28 Vet.App. 158, 165 (2016), and “is one of several regulations that precede the rating
schedule for the musculoskeletal system and explain how to arrive at proper evaluations under the
DCs appearing in [that portion of the] rating schedule,” Petitti, 27 Vet.App. at 424. See 38 C.F.R.
§§ 4.40-4.73 (provisions organized under the subheading, “The Musculoskeletal System”). Section
4.59, entitled “Painful motion,” provides in full:
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[4]
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.
38 C.F.R. § 4.59 (2016).
The plain language of § 4.59 indicates that the regulation is not limited to the evaluation of
musculoskeletal disabilities under DCs predicated on range of motion measurements. Section 4.59
states that one intent of the musculoskeletal portion of the rating schedule “is to recognize painful
motion” of musculoskeletal conditions “as productive of disability.” Id. The regulation declares that
4″Periarticular” means “around a joint.” DORLAND’S at 1411.
6
one way to achieve this intent is to assign the minimum compensable evaluation available under the
applicable DC whenever the evidence of record reveals that the joint or periarticular region at issue
is actually painful, unstable, or malaligned. Id. “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.” Id. (emphasis added).
In other words, § 4.59 does not, as the Secretary contends, condition the award of a minimum
compensable evaluation for a musculoskeletal disability on the presence of 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. See Sowers v. McDonald, 27 Vet.App. 472, 475, 481 (2016) (explaining that
Ҥ 4.59 employs conditional language that must be read in conjunction with the appropriate DC to
be understood”). Thus, the plain language of § 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
therefore rejects the Secretary’s attempts to read into the regulation a limitation to its applicability
that is simply not there. See Ortiz-Valles v. McDonald, 28 Vet.App. 65, 71 (2016) (noting that 38
C.F.R. § 4.16(a) does not contain limiting language regarding marginal employment and declaring
that “[t]he Secretary cannot simply add restrictions to a regulation where they do not exist”); Burton
v. Shinseki, 25 Vet.App. 1, 5 (2011) (declining to infer a limitation from the text of § 4.59 and
holding that, although the first and third sentences mention arthritis, the regulation is applicable in
“non-arthritis contexts”); cf. Bates v. United States, 522 U.S. 23, 29 (1997) (“[W]e ordinarily resist
reading words or elements into a statute that do not appear on its face.”).
But, even if § 4.59 were ambiguous as to its applicability, the Court still would not defer to
the Secretary’s proffered interpretation, because it does not reflect the agency’s considered view on
the matter, as he has not consistently adhered to that interpretation. Although the M21-1 indicates
that § 4.59 does not apply to DCs not predicated on loss of range of motion, M21-1, pt. III, subpt.
7
iv, ch. 4, § A(1)(m), 5 during oral argument in Petitti, the Court asked the Secretary whether § 4.59
“appl[ied] to [DCs] that have no specific requirement for limitation of motion, as well as those that
do.” The Secretary replied that “[t]here could be instances where painful motion could be relevant
for a compensable rating based on the facts of the case if it’s not specifically listed in the [DC],” and
cited the DC for hallux valgus–one of the DCs at issue here–as an example of a DC to which § 4.59
applied even though it was not predicated on range of motion findings. Petitti Oral Argument at
31:39-52. This statement is directly contrary to the Secretary’s arguments in this case and undercuts
his reliance on the M21-1 as evidence that his current litigating position represents his considered
view as to the applicability of § 4.59. See Martin v. Occupational Safety & Health Review Comm’n,
499 U.S. 144, 156 (1991) (explaining that “‘litigating positions’ are not entitled to deference when
they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action”).
Likewise, Ms. Southall-Norman notified the Court of at least two nonprecedential decisions
where the Secretary conceded that the Board provided inadequate reasons or bases when it failed to
address entitlement to a compensable evaluation under § 4.59 for bilateral foot disabilities evaluated
under DCs 5276 and 5284 (other foot injuries). Ebron, No. 13-1296, 2014 WL 1778434; Davis, No.
12-2013, 2013 WL 6622931; cf. Hudgens v. McDonald, 823 F.3d 630, 638-39 (Fed. Cir. 2016)
(examining Board decisions and the Secretary’s litigating position in nonprecedential decisions of
the Court to determine whether the Secretary’s proffered interpretation of a regulation was entitled
to Auer deference).
Given the inconsistency in the Secretary’s positions regarding the applicability of § 4.59 in
this case and the aforementioned cases, even if the language of the regulation were not plain, the
Court could not conclude that the Secretary’s current interpretation of § 4.59 represented his
5This section of the M21-1 directs that “[f]unctional loss as discussed in 38 CFR 4.40, 38 CFR 4.45, and
38 CFR 4.59 is not used to evaluate musculoskeletal conditions that do not involve ROM [(range of motion)] findings.”
M21-1, pt. III, subpt. iv, ch. 4, § A(1)(m). Although the Court need not address the merits of the M21-1 provision to
decide this case, the Court reminds the Secretary that § 4.59, which governs “painful motion,” provides an avenue for
obtaining a minimal compensable evaluation irrespective of whether pain in a joint or periarticular region causes
functional loss. See Petitti, 27 Vet.App. at 426 n.8 (differentiating between §§ 4.40 and 4.45, consideration of which
“might result in a disability rating higher than the minimum disability rating for a particular joint” based on functional
loss, and § 4.59, consideration of which might result in “the minimum disability rating for painful motion”); Mitchell v.
Shinseki, 25 Vet.App. 32, 37 (2011) (stating that, “although pain may cause a functional loss, pain itself does not
constitute functional loss”) (emphasis in original)).
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considered view on the matter. See Correia, 28 Vet.App. at 167-68 (concluding that the Secretary’s
proffered interpretation to the Court of a different portion of § 4.59 did not represent his considered
view of § 4.59 because it was inconsistent with prior positions he took in other appeals before the
Court where he had conceded error based on a contrary interpretation of § 4.59). Therefore, even
if § 4.59 were ambiguous as to whether it applied to the evaluation of musculoskeletal disabilities
only under DCs predicated on range of motion measurements, Auer deference to the Secretary’s
interpretation in this regard would not be warranted. See Christopher v. SmithKline Beecham Corp.,
132 S. Ct. 2156, 2166 (2012) (explaining that “deference is . . . unwarranted when there is reason
to suspect that the agency’s interpretation does not reflect the agency’s fair and considered judgment
on the matter in question,” such as “when the agency’s interpretation conflicts with a prior
interpretation, or when it appears that the interpretation is nothing more than a convenient litigating
position, or a post hoc rationalization advanced by an agency seeking to defend past agency action
against attack” (internal quotations and alterations omitted)); Correia, 28 Vet.App. at 168.
In sum, the plain language of § 4.59 indicates that it is applicable to the evaluation of
musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular
regions, regardless of whether the DC under which the disability is being evaluated is predicated on
range of motion measurements. The Board was therefore required to address § 4.59 in deciding Ms.
Southall-Norman’s entitlement to an initial compensable evaluation for a bilateral foot disability
under DCs 5276 and 5280 prior to June 2, 2014, and its failure to do so renders inadequate its
reasons or bases for denying a compensable evaluation. See Schafrath v. Derwinski, 1 Vet.App. 589,
593 (1991) (holding that the Board errs when it fails to address all potentially applicable provisions
of law and regulation). Although the Secretary argues that the Board was not obligated to discuss
§ 4.59 because the evidence of record does not reflect painful motion, Secretary’s Br. at 10-11, the
record contains competing evidence on that point. Compare R. at 572, 764, 1087, 1183 (veteran’s
complaints of foot pain with physical activity), with R. at 1090 (July 2007 VA medical examinations
showing no pain on motion). See also Petitti, 27 Vet.App. at 425 (finding the terms “painful motion”
and “actually painful” joints to be synonymous and stating that the Court “cannot conceive of a
situation in which an ‘actually painful’ joint would not necessarily connote a joint that was painful
on motion”). That threshold question, as well as the related but unaddressed question of whether the
9
record reflects an actually painful, unstable, or malaligned joint or periarticular region sufficient to
trigger application of § 4.59, involves factfinding and weighing of evidence that is best left to the
Board. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (reiterating that “the
evaluation and weighing of evidence are factual determinations committed to the discretion of the
factfinder”); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (noting “the general rule that
appellate tribunals are not appropriate fora for initial fact[]finding”). Accordingly, the Court
concludes that remand is warranted to adequately address those questions in the first instance. See
Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where
the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases
for its determinations, or where the record is otherwise inadequate”).
B. Impairment of Sphincter Control
Ms. Southall-Norman next argues that the Board provided inadequate reasons or bases for
its decision that she was not entitled to a separate compensable evaluation for impairment of
sphincter control because it improperly found her October 2013 Board hearing testimony regarding
onset of fecal leakage inconsistent with her prior statements on that issue. Appellant’s Br. at 10-13.
She asserts that, contrary to the Board’s finding, there is nothing inconsistent between her statement
at the October 2013 hearing that she began experiencing fecal leakage 5 or 6 years earlier–i.e.,
between October 2007 and 2008–and her statement at the July 2007 VA examination–more than 6
years before October 2013–that she had fecal leakage but did not need to wear an absorbent pad. Id.
at 11-12. The Secretary responds that the veteran failed to carry her burden of demonstrating error
because the Board’s negative credibility finding was based on numerous inconsistencies in her
statements about the onset, degree, and type of leakage and the need to wear absorbent materials and
that, in any event, the evidence establishes that she does not have loss of sphincter control.
Secretary’s Br. at 12-15. In reply, Ms. Southall-Norman contends that, contrary to the Secretary’s
argument, the Board found that she had sphincter impairment during the relevant period, which is
a favorable finding that cannot be disturbed on appeal. Reply Br. at 4. She asserts that the actual
issue on appeal is whether she had fecal leakage warranting a separate compensable evaluation and
she reiterates that the Board did not lay a proper foundation for finding her lay statements not
credible on that matter. Id. at 4-6. The Court agrees with the veteran.
10
In rendering its decision, the Board is required to provide a written statement of reasons or
bases for its “findings and conclusions[] on all material issues of fact and law presented on the
record.” 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand
the precise basis for the Board’s decision and to facilitate review in this Court. Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility
and probative value of evidence, account for evidence that it finds persuasive or unpersuasive, and
provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown,
7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). When assessing
the credibility of lay evidence, the Board may consider factors such as facial plausibility, bias, selfinterest,
and consistency with other evidence of record. Buchanan v. Nicholson, 451 F.3d 1331,
1337 (Fed. Cir. 2006); Caluza, 7 Vet.App. at 511.
The Board found that there were inconsistencies in Ms. Southall-Norman’s lay statements,
which led it to conclude that “many of her assertions overstate the scope and/or severity of her
symptoms.” R. at 10. One of the putative inconsistencies identified by the Board was that at the July
2007 VA examination Ms. Southall-Norman described her fecal leakage as slight and stated that it
did not require a pad, but at the October 2013 Board hearing she stated that she had worn liners for
fecal leakage for “about 5, 6 years.” R. at 11, 1187. However, the fact that the veteran denied using
a pad in July 2007 is not inconsistent with her later report in October 2013 that she began using a
pad 5 to 6 years earlier–i.e., after July 2007 at some point between October 2007 and October 2008.
In fact, Ms. Southall-Norman’s earlier statement is consistent with her later testimony that her
condition worsened after service, forcing her to start wearing pads after separation, because the July
2007 examination was conducted while she was still in service. R. at 1186. Thus, contrary to the
Board’s finding, there does not appear to be any inconsistency in Ms. Southall-Norman’s reports of
when she began using absorbent materials because of fecal leakage, and the Board’s reasons or bases
for impugning her credibility on that basis are inadequate. See Fountain v. McDonald, 27 Vet.App.
258, 273-75 (2015) (concluding that the Board erred in not adequately explaining several putative
discrepancies between the appellant’s lay statements and the other evidence of record); Caluza,
7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
11
Moreover, the Board improperly faulted Ms. Southall-Norman for not differentiating between
the types of leakage that she experienced over the years, declaring that the August 2011 VA
examiner’s finding that the veteran had no fecal leakage “calls into question the assertion that all
leakage was constant, much less that only pus and stool leakage were constant.” R. at 12. Although
the Board is allowed to find a veteran not credible based on inconsistencies between medical
evidence and lay evidence, see Buchanan, 451 F.3d at 1337; Parseeya-Picchione v. McDonald,
28 Vet.App. 171, 175-76 (2016); Caluza, 7 Vet.App. at 511, it must account for the potentially
favorable material evidence of record when doing so. In this case, the Board did not mention the
veteran’s report to the July 2007 VA examiner that she had fecal leakage every day, R. at 1087, or
her October 2013 Board hearing testimony that she experienced fecal leakage after bowel
movements, R. at 1184-85. This evidence lends support to her later statements regarding fecal
leakage that the Board discounted, and the Board’s failure to account for that favorable material
evidence further diminishes its reasons or bases for finding the veteran not credible. See Caluza,
7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
Given the foregoing inadequacies in the Board’s credibility analysis, the Court will not accept
the Secretary’s invitation to find those reasons-or-bases errors harmless based on the Board’s finding
that “[a]nal sphincter impairment has not been established.” R. at 15; see Secretary’s Br. at 14-15.
Although the August 2011 VA examination found no impairment of sphincter control, R. at 797, the
record is replete with other evidence suggesting such impairment, which the Board improperly
discounted for the reasons set forth above. See R. at 1087 (July 2007 VA examination report
reflecting daily fecal leakage), 1039 (veteran’s November 2008 report that her hemorrhoids caused
“horrible stains in [her] under[]garments”), 1184-87 (veteran’s October 2013 Board hearing
testimony differentiating between bleeding, pus, and fecal leakage and indicating that she needed to
wear absorbent materials every day to prevent fecal leakage from soiling her undergarments).
Accordingly, the Court will remand the veteran’s impairment of sphincter control claim because the
Court cannot conclude that the Board’s reasons or bases errors in assessing the veteran’s credibility
were harmless. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of
prejudicial error”); Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004) (“Where the effect
of an error on the outcome of a proceeding is unquantifiable, however, we will not speculate as to
12
what the outcome might have been had the error not occurred.”); Arneson v. Shinseki, 24 Vet.App.
379, 389 (2011) (finding prejudice when error “could have altered’ the Board’s determinations);
Tucker, 11 Vet.App. at 374.
III. CONCLUSION
Upon consideration of the foregoing, the portions of the January 5, 2015, Board decision
denying entitlement to an initial compensable evaluation for a bilateral foot disability prior to June
2, 2014, and a separate evaluation for impairment of sphincter control are SET ASIDE and those
matters are REMANDED for readjudication consistent with this decision. On remand, Ms. Southall-
Norman may present any additional arguments and evidence to the Board in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi,
16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a
critical examination of the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C.
§ 7112.
The balance of the appeal is DISMISSED.
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