Crystal D. Southall-Norman v. Robert A. McDonald
28 Vet. App. 346
| Vet. App. | 2016Background
- Veteran Crystal D. Southall‑Norman served 2000–2007 and sought service connection for bilateral foot disability (hallux valgus, later pes planus) and hemorrhoids with reports of fecal leakage during and after service.
- RO initially granted service connection but assigned noncompensable ratings; veteran appealed to the Board and later to the Court.
- A June 2, 2014 VA foot exam diagnosed hallux valgus and pes planus; RO assigned a 50% rating for pes planus effective that date. The Board denied any compensable foot rating before June 2, 2014.
- The Board also denied a separate compensable evaluation for impairment of sphincter control related to hemorrhoids, finding the veteran’s reports of fecal leakage inconsistent and contradicted by some medical exams.
- Central legal question: whether 38 C.F.R. § 4.59 (painful motion) must be considered when rating musculoskeletal conditions under DCs that do not rely on range‑of‑motion (ROM) measurements, and whether the Board gave adequate reasons/bases regarding the veteran’s credibility about fecal leakage.
- Court held that § 4.59 applies to painful, unstable, or malaligned joints/periarticular regions irrespective of whether the controlling DC is predicated on ROM, and that the Board failed to address § 4.59 for the pre‑June 2, 2014 foot rating and provided inadequate reasons/bases regarding fecal leakage; it set aside and remanded both issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 4.59 must be considered when evaluating musculoskeletal disabilities under DCs not predicated on ROM | Southall‑Norman: § 4.59's plain language has no ROM limitation and applies to painful joint/periarticular pathology regardless of DC wording | Secretary: § 4.59 applies only to DCs predicated on ROM; M21‑1 supports that limited application | Court: § 4.59 facially applies to painful/unstable/malaligned joints regardless of whether a DC is ROM‑based; Board erred by not addressing § 4.59 and must readjudicate |
| Whether the Board provided adequate reasons/bases for denying a separate compensable evaluation for impairment of sphincter control (fecal leakage) | Southall‑Norman: Board mischaracterized inconsistencies; earlier statements are consistent with later testimony and the Board failed to account for favorable evidence | Secretary: Board permissibly found inconsistencies and relied on VA exam showing no sphincter impairment; veteran failed to meet burden | Court: Board’s credibility finding was inadequately explained and ignored favorable material evidence (e.g., July 2007 report of daily leakage); remand required for proper credibility analysis and readjudication |
Key Cases Cited
- Brown v. Gardner, 513 U.S. 115 (clarifies starting point of regulatory interpretation)
- Auer v. Robbins, 519 U.S. 452 (deference to agency interpretation of its regulations, with limits)
- Petitti v. McDonald, 27 Vet.App. 415 (discussing § 4.59 and painful motion in musculoskeletal ratings)
- Correia v. McDonald, 28 Vet.App. 158 (§ 4.59 governs painful motion and its application)
- Tucker v. West, 11 Vet.App. 369 (remand is remedy where Board fails to provide adequate reasons or bases)
- Gilbert v. Derwinski, 1 Vet.App. 49 (Board must provide statement of reasons or bases adequate for judicial review)
- Caluza v. Brown, 7 Vet.App. 498 (Board must analyze credibility, probative value, and address material favorable evidence)