## Facts

- A Marine Corps veteran sought VA disability compensation for bilateral foot disability originally characterized as hallux valgus and for hemorrhoids.
- VA granted service connection for bilateral hallux valgus but assigned a noncompensable rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5280.
- The veteran consistently reported significant bilateral foot pain, including pain with standing, walking, and weight-bearing.
- A later VA examination diagnosed bilateral pes planus and linked it to the service-connected foot condition.
- VA later awarded service connection for pes planus and assigned a 50% rating under DC 5276 effective June 2, 2014 (exam date).
- The Board denied a compensable rating for the foot disability before June 2, 2014 under DC 5276 and DC 5280 and did not address 38 C.F.R. § 4.59.
- For hemorrhoids, the Board awarded a 10% rating but denied a separate compensable rating for sphincter impairment under DC 7332, finding the veteran’s fecal-leakage reports inconsistent and not sufficient for the compensable criteria.
- The veteran appealed, arguing (among other points) that § 4.59 required at least the minimum compensable rating for her painful foot condition even though DC 5276 and DC 5280 are not framed in range-of-motion (ROM) terms, and that the Board mishandled the sphincter-impairment evidence.

## Issues

1. Whether 38 C.F.R. § 4.59 requires at least the minimum compensable rating for a musculoskeletal disability with evidence of an actually painful, unstable, or malaligned joint or periarticular region when a compensable evaluation exists under the applicable diagnostic code, even if the code is not based on ROM measurements.
2. Whether the Board erred by failing to address and apply § 4.59 when it denied a compensable rating for the veteran’s bilateral foot disability prior to June 2, 2014 despite evidence of pain with weight-bearing and use.
3. Whether the Board provided adequate reasons or bases for denying a separate compensable rating for sphincter impairment associated with hemorrhoids under DC 7332.

## Decision

- The Court held that the plain language of § 4.59 is not limited to musculoskeletal diagnostic codes predicated on ROM measurements.
- The Court rejected the Secretary’s position that § 4.59 applies only to ROM-based diagnostic codes.
- The Court vacated the Board’s denial of a compensable rating for the bilateral foot disability for the period prior to June 2, 2014 and remanded for readjudication that considers § 4.59.
- The Court declined to defer to the Secretary’s narrow interpretation of § 4.59, citing lack of a consistent, considered agency position.
- The Court also addressed the Board’s handling of the claimed sphincter impairment associated with hemorrhoids, focusing on whether the Board’s reasons-or-bases analysis satisfied the applicable standard in light of the governing criteria for DC 7332.

## Legal Principles

- 38 C.F.R. § 4.59 applies to musculoskeletal disabilities even when the applicable diagnostic code is not expressly based on ROM measurements.
- When there is evidence of an actually painful, unstable, or malaligned joint or periarticular region and the applicable diagnostic code contains a compensable evaluation, § 4.59 requires assignment of at least the minimum compensable rating.
- The Board must address potentially applicable regulations raised by the record and provide an adequate statement of reasons or bases for its determinations, including when evaluating pain-related entitlement to a minimum compensable rating.
- Agency deference is not warranted where the agency’s litigating position does not reflect a consistent, authoritative interpretation.

## Conclusion

The Court interpreted § 4.59 to require consideration of a minimum compensable evaluation for painful musculoskeletal conditions even under non-ROM-based diagnostic codes and remanded because the Board denied a pre–June 2, 2014 compensable foot rating without addressing § 4.59, while also scrutinizing the adequacy of the Board’s explanation regarding a separate sphincter-impairment rating claim.


Southall-Norman v. McDonald, 28 Vet. App. 346 (2016)