UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O . 15-1357
C R Y S TA L D. S O U TH

A L L -N O R

M A N , A P P E L L

A N T ,
V

. R O B E R T A. M C D O N

A L D , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.
On Appea l from the B oard of Veter ans' Appea ls

(Argued Jul y

26, 2016 Dec ided Dec ember 15, 2016)

Christ ian A. McTarnaghan , with whom Michae l S. Just was on the brief, both of Providence , Rhode I sland, for the appellant.
Omar Y ousaf , with whom Leigh A. Bradley , Gene ral Counsel; Mary Ann Flynn , Chief Counsel, and Kenneth A. W alsh , Deputy Chief Counsel, wer e on the brief, all of Washington, D.C., for the a ppellee.

Be fore SCHOEL EN, B ARTL EY, and G REENBE RG, Judges

. BA RTL EY, Judge : Veter an Cry stal D. Southall-Norman appea ls throug h counsel a J anuar y 5, 2015, Boa

rd of Veter ans' Appea ls (B oard) decision denying entitlement to an initial compensa ble disability evaluation for a bilatera l foot disability , to include hallux valg us and pes planus, prior to 1 J u n e 2, 2014; and a separ ate evaluation for impairment of sphincter control rela ted to service

-

" Hallux valg us" is " m edial deviation of the first m etatarsal and lateral deviation of the great toe," w hich " can 1 lead to painfu l m otio n of the j oint and shoe w ear diff iculty ." Hallu x Valg us , A M

. O RT HOPA EDI C F OOT & A NK L E S OC ' Y , h t t p: / / w w w .ao fas.org/PRC/conditions/Pa ges/C onditions/Hallux -Valg us.aspx (l a s t v i s i t e d O c t

. 27 , 20 16 ). "Th e s t ru c t u re s dire ctly inv olved in a hallux defor m ity i nc l ud e t he first m etatarso phalangeal (MT P ) j oint, the abd uctor and add uctor hallicu s tendons, the hallu cal sesam oid com plex, the m edial and lateral MT P j oint capsules, the first tarsom etatarsal j oint and the gastrocsoleus c o m plex." Id .; see D ORL A ND ' S I L L USTR A TE D M EDI CA L D I CT I ONA RY 81 8 (3 2d ed. 20 12 ) [hereinafter D ORL

A ND ' S ] (d efin ing " hallu

x valgus " as " ang ulation o f the great toe aw ay from the midlin e of the b od y , or tow ard the other to es; the great toe m ay rid e under o r o ver the other to es" ).connec ted hemorrhoids. Record (R.) at 2-20. This matter was ref err ed to a panel of the Court, with 2 oral argument, to addre ss whether the Boa rd is require d to consider and apply 38 C.F.R. § 4.59 when evaluating a musculoskeletal disability under a diag nostic code (DC) that is not predic ated on rang e of motion measure ments. For the rea sons that follow, the Cour t wi l l set aside the portions of the J anuar y 5, 2015, Boa

rd decisio n denying entitlement to an initial compensa ble evaluation for a bilatera l foot disability prior to J une 2, 2014, and a separ ate evaluation for impairment of sphincter control and r emand those ma tters for r eadjudication consistent with thi s decision.

I. F ACTS Ms. Southall-Norman serve d on active duty in the U.S. Marine Corps fr om Febr uary 2000
to October 2007. R. at 23. Whil e in service , she filed a J une 2007 claim for service connec tion for, inter alia, a bilatera l foot disability and hemorrhoids, R. at 1137-47, and underw ent a J uly 2007 VA
g ener al medical examination, R. at 1086-92. She repor ted persistent hemorrhoids with fec al leaka g e "oc cur[ring ] less than 1/3 of the day in small amounts," but indicated that "a pad [was] not neede d." R. at 1087. She also repor ted bunions on both fee t, which cause d constant, localiz ed pain

exacer bated by phy sical activity and wea ring high heels. Id. A phy si ca l ex amination of the fee t

reve aled tender

ness bilatera lly , but no pain on motion. R. at 1090. The exami ner diag nosed persistent hemorrhoids with rec tal pain and bilatera l hallux valg us with pain on prolong ed standing and wea ring high h ee l s
. R

. at 1092. Shortly afte r service , at a Dec ember 2007 private medical appointment, Ms. Southall-Norman repor ted hemorrhoid pain and a "sma ll amount of pus and blood with wiping only ," but de nied bloody stools. R . at 935. I n Marc h 2008, a VA reg ional office (RO) g rante d service connec tion for bilatera l hal l u x valg us and external hemorrhoids and as signe d noncompensa ble evaluations for those conditions under 38 C.F.R. §§ 4.71a, DC 5280 (hallux valg us), and 4.114, DC 7336 (hemorr hoids, external or internal), respe ctively , eff ective October 10, 2007, the day afte r separ ation from service

. R. at 1065-

T he Bo ard also d enied entitlem ent to an initial evaluation in excess of 50 % for a bilater al foot disability , to 2 inclu de hallux valgus and pes planus, since June 2, 20 14 , and an initial evaluation in excess of 10 % for hem or rhoids. R. at 7-9, 18 -19. Bec ause M s. S o ut hall-Norman has declined to challeng e those po rtions of the Bo ard decisio n, the app eal a s t o t ho se issu es w ill be dism issed. See Pederson v. McDon ald , 27 Vet.App. 27 6, 28 1-86 (2 01 5) (en banc) (d eclinin g to review

th e m erits of an issu e not argued on app eal and dism issin g that po rtion of the app eal); Caccio la v. Gibson , 2 7 Ve t.App. 4 5, 48 (2 01 4) (sam e).
284. Ms. Southall-Norman timely disag ree d with the assig ned evaluations, asser ting, inter alia, that she has "[e]x terna l hemorrhoids [wit h] constant b l ee d i n g or leaking ." R. at 1055. I n November 2008, she submitt ed a statement that her external hemorrhoids "le ave[] horrible stains in [her] under[ ] gar m en t s " and wer e "c onstantly oozing pus or bleeding ," R. at 1039. The RO issued a Statement of the Case in September 2009 denying compensa ble evaluations for both conditions, R. at 817-37, a

nd the veter an per fec ted her appea l to the Boa

rd in Novembe r 2009, R. at 815-16. I n Aug us t 2 0 1 1 , M s
. So u

th a ll

- N o r ma n w a s aff orded a VA rec tal examination and complained of rec tal pain, swelling , and bleeding

. R. at 795. The examiner did not find impairment of sphincter control or f

eca l leakag e. R. at 796-97. The nex t month, t h e v et er an underwent a VA foot examination and reported bilateral foot pain and cra

mping when standing and walking

. R. at 764. A phy sical examination reve aled bilatera l fore foot pain on manipulation, but no additional functional loss due to pain, R

. at 765, and x -ra y s showed no signific ant bone or joint ab n o rm al ity and unrema rkable soft tissues, R. at 768. The diag nosis was bilatera l hallux valg us and pes planus. R. at 766. I n October 2013, Ms. Southall-Norman testified at a Boa rd hear ing that she ex p er i en ced
constant bilatera l foot pain, including while standing and walking and when at rest. R. at 1183. She also stated that, five or six y ear s ear lier, her hemorrhoid condition worsene d and started causing fec al leaka g e and that she has been wea ring pads ever

y day since then to preve nt staining. R. at 1185-87. I n Fe bruar

y 2014, the B oard issued a decision that g rante d a 10% initial eva luation, but no highe r, for hemorrhoids, and rema nded the claim for an initial compensa ble evaluation for a bilatera l foot disability

to obtain another VA examination. R. at 592-605. Ms. Southall-Norman a ppeale d the denial of a highe r hemorrhoid evaluation and, in October 2014, the Court g rante d a joint motion for re m an d (J M R ) in which the parties stipulated that the Boa rd had err ed in failing to consider whether the veter an was entitled to a separ ate evaluation for loss of sphincter control. R. at 470-75. The J MR noted the veteran 's re ports of fec al leaka g e at the J uly 2007 VA examination and the October 2013 Boa

rd hearing and directed the Boa rd t o addre ss the credibility and probative value of those repor

ts in light of the fac t that t h e DC for impairment of sphincter control, 38 C.F.R. § 4.114, DC 7332, "doe s not expli citly require that leaka g e be confirme d by objective finding s." R. at 472.

3I n the meantime, in June 2014, Ms. Southall-Nor man was aff

orded a VA foot examination pursuant to the Fe bruar

y 2014 Boa

rd rema nd. R. at 5 7 1 -76. She repor ted bilatera l foot pain on weig ht-bea

ring , R. at 572, which was confirme d by a phy sical examination, R. at 574. The examiner diag nosed bilatera l hallux valgus and pes planus, R. at 571, and opined that it was at least as likely

as n o t t h at bilatera l pes planus was etiologic ally rela ted to the service -conne cted bilatera l hallux valg us, R. at 576. Ba sed on that examination, the RO in September 2014 added bilatera l pes planus
to th e veter an' s curr ent service -conne cted bilatera l foot disability and assig ned a 50% evaluation under § 4.71a, DC 5276 (flatf oot, acquir ed), eff

ective J une 2, 2014, the date of the examination. See R. at 3. 3 The case was subsequently returne d to the Boa rd and, in J anuar

y 2015, it issued the decision

curr ently on appea l. R. at 2-20. Reg arding the bilatera l foot d i s abil ity , the Boa rd found that the evidenc e of rec ord did not establish entitlement to a compensa ble evalua

tion prior to J une 2, 2014, under either DC 5276 or 5280 beca use, during that per i od, her pes planus manifested in mild
sy mptoms relieve d by built-up shoe or arc h support and her hallux valg us was mild or modera te and did not require surg ery
. R. at 17-18. Although the Boa rd considere d the veter an' s comp l ai nts of pain, R. at 18, it did not m ention § 4.59 in evaluating her bilate ral foot disability

. As to hemorrhoids, the Boa rd found that Ms. Southall-Norman was not entitled to a separ ate evaluation for sphincter impairment beca use her repor

ts of fec al leaka g e wer e inconsistent throug hout the claim period and contra dicted by the medical evidenc e of rec ord. R. at 10-11. The Boa rd also noted that Ms. Southall-Norman did not alway s differ entiate betwee n fec al leaka g e and other ty pes of leaka g e and found that, to the extent that her complaints rela ted solely to fec al leaka g e, they wer e insufficient to demonstrate constant slight or occa sional modera te fec al leaka g e require d for a compensa

ble eva luation under DC 7332. R. at 11-12. This appe al followed.

T he reco rd be fore the Court d oes not c ontain a cop y of the September 2 01 4 RO d ecision. 3
4II. ANALYSIS A. B ilatera l Foot Disability Ms. Southall-Norman arg ues tha t th e B o a r d p r o v id e d ina dequate rea sons or bases for denying

an initi al compensa

ble evaluation for her bilatera l foot disability prior to J une 2, 2014, beca use it failed to discuss § 4.59, even though the rec ord contained evidenc e of foot pain on weig ht bear ing, wal k i n g , standing , and manipulation. Appellant' s Br ief (Br.) at 6-10. The S ecr etar y disputes this contention and asser

ts that the Boa

rd was not require d to addre ss § 4.59 beca use it only applies when evaluating a joint disability under a DC predic ated on rang e of motion measure ments, and DCs 5276 and 5280 do not mention rang e of motion. Secre tary 's Br

. at 7-10. The Secre tary alterna tively
argues t hat, to the extent that § 4.59 is ambig uous on this point, the Court should defe r to his

rea sonable interpre tation of that regulation as set forth in the VA Adjudication Procedure s Manual (M21-1), pt. I I I , subpt. iv, ch. 4, § A(1)( m), and its prede cessor s. Id

. at 7-9. He also contends that,

even if § 4.59 wer e broadly applicable to the evaluation of all musculoskeletal disabiliti es reg ardle ss of the content of the rele vant DCs, the medical evidenc e of rec ord in this case does not ref lect painful motion sufficie nt to entitle the veter an to a compensa ble evaluation for her bilatera l foot disability

. Id

. at 10-11. Ms. Southall-Norman responds that the Secre tary ' s interpre tation of § 4

. 59 is inconsisten t wi t h t he regulation's plain lang uag e, which does not contain any limit ation as to its applicability

. Reply Br

. at 1-2. I n the alternative, she argues that the Secretary ' s proff ere d interpre tation is not entitled to defe renc e beca use it does not ref

lect h i s consi dere d view on the matter, as evince d by the contra ry positions taken b y the Secre tary at oral argument in Petitti v. McD onald , 27 Vet.App. 415 (2015), and in Ebron v. Shinseki , No. 13-1296, 2014 WL 1778434 (Ve t. App. May 6, 2014) (mem. dec.) , and Davis v. Shinseki , No. 12-2013, 2013 WL 6622931 (Ve t. App. Dec . 17, 2013) (mem. de c.). See J uly 18, 2016, Notices of Supplementa l Authority

. The parties' dispute comes down to the proper interpre tation of § 4.59 and, there fore , we must beg in with an examination of the lang uag e of that regulation. See Good Samaritan Hosp. v. Shalala , 508 U.S. 402, 409 (1993) (" The starting point in interpre ting a statute [or regu l at i o n ] is its lang uag e." ); Petitti , 27 Vet.App. at 422 (" Reg ulatory interpre tation beg ins with the lang uag e of the
regulation, the plain meaning of whi ch i s d er i v ed from its text and its structure .")

. I f the plain meaning of § 4.59 is clea

r from its lang uag e, then that meaning controls and "that is ' the end of the

5matter.' " Tropf v. Nicholson , 20 Vet.App. 317, 320 (2006) (quoting Brown v. Ga rdner , 513 U.S.

115, 120 (1994)) ; see Pache co v. Gibson , 27 Vet. Ap p
. 2 1 , 25 (2014) (en banc)

. I f, howeve r, the l anguag e is ambig uous, then the Court must defe r to the ag ency ' s interpre tation of its regulation unless that interpre tation i s inconsistent with the lang uag e of the regulation, is otherwise plainly

err oneous, or does not r epre sent the ag ency ' s considere d 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 ( Fe d. Cir. 2006); Petitti , 27 Vet.App. at 423. Section 4.59 "c oncer

ns painful motion of the musculoskeletal sy stem g ener ally ," Correia v. McD onald , 28 Vet.App. 158, 165 (2016), and "is one of sever al reg ulations that prec ede the rating schedule for the musculoskeletal sy stem and explain how to a rrive at proper evaluations unde r the DCs a ppear ing in [that portion of the] rating schedule ," Petitti , 27 Vet.App. at 424. See 38 C.F.R. §§ 4.40-4.73 (provisions org anized under the subheading , "T he Musculoskeletal Sy stem")

. Section 4.59, entitled "Painf

ul motion," provides in full: Wit h any form of arthritis, painful motion is an important fac tor of d i s abil ity , the fac ial expression, wincing , etc., on pressure or manipulation, should be car efu l l y noted and de finitely

rela ted to aff

ecte d joints. Mus cle spa sm will gre atly assist the i d en t ification. Sciatic neuritis is not uncommonly cause d by arthritis of the spine. The intent of the schedule is to rec og nize painful motion with joint or peria rticular [4 ] patholog y as productive of disability

. I t is the intention to rec og nize actua lly painful, unstable, or malalig ned joints, due to heale d injury , as entitled to at least the minimum compensa

ble rating for the joint. Crepitation either in the soft tissues such
as the tendons or ligaments, or cre pitation within the joint structure s should be noted
car efully as points of contac t which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pa in on both a ctive and pa ssive motion, in weig ht-be a

r in g a n d n onweig ht-bea

ring and, if possible, with the rang e of the opposite undamag ed joint. 38 C.F.R. § 4.59 (2016). The plain lang uag e of § 4.59 indicates that the regulation is not limit ed to the evalua tion of musculoskeletal disabiliti es under DCs predic ated on rang e of motion measure ments. Section 4.59 states that one intent of the musculoskeletal por tion of the rating schedule "is to re cog nize painful motion" of musculoskeletal conditions "a s productive of disability ." Id

. The reg ulation decla

res that

" P eriar ticular" m eans " aro un d a j oint." D ORL A ND ' S at 14 11

. 4
6one way to achie ve this intent is to assig n the minimum compensa ble evaluation available under the applicable DC whene ver the evidenc e of rec ord reve als that the joint or peria rticular reg ion at issue i s actua lly painful, unstable, or malalig ned. Id

. "I t is the intention to rec og nize actua lly painful, unstable, or malalig ned joints, due to heale d injury , as entitled to at least the minimum compensa ble rating for the joint." Id . (empha sis added). I n other words, § 4.59 does not, as the Secre tary contends, condition the awa rd of a minimum
compensa ble evalua t i o n fo r a musculoskeletal disability on the prese nce of rang e of motion

measure ments in that DC ; ra t h er , i t conditions that awa rd on evidenc e of an actua lly painful, unstable, or mala ligne d joint or periar ticular re g ion and the prese nce of a compe nsable e valuation in the applicable DC. See Sowers v. McD onald , 27 Vet.App. 472, 475, 481 (2016) (explaining that "§ 4.59 employ s conditional lang uag e that must be rea d in c onjunction w ith the appropr iate DC to be understood" ). Thus, the plain lang uag e of § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabiliti es involving joint or peria rticular patholog y that are painful, whether or not evaluated under a DC predic ated on rang e of motion measure ments. The Court there fore reje cts the Secr etar y ' s attempts to read into the reg ulation a li mitation to its applicability that is simpl y

not there. See Ortiz-Valles v. McD onald , 28 Vet.App. 65, 71 (2016) ( noting that 38 C.F.R. § 4.16(a) does not contain limit ing lang uag e reg arding marg inal employ ment and decla

ring that "[t]he Secre tary cannot simply add restric tions to a regulation wher e they do not exis t") ; Burton

v. Shinseki , 25 Vet. Ap p
. 1 , 5 (2 0 1 1 ) (dec lining to infer a limit ation from the text of § 4.59 and holding that, althoug h the first and third sentenc es mention a rthritis, the regulation is applicable in "non- arthritis contexts"); cf. Bates v. United States , 522 U.S. 23, 29 (1997) (" [W ]e ordinarily resist

rea ding w ords or e lements into a statute that do not appea r on its fac e." ). But, even if § 4.59 wer e ambig uous as to its applicability , the Court still would not defe r to the Secre tary ' s proff

ere d interpre tation, beca

use it does not ref

lect the ag ency ' s considere d view on the matter, as he has not c onsistently adher ed to that interpre tation. Although the M21-1 indicates that § 4.59 does not apply to DCs not predic ated on loss of rang e of motion, M21-1, pt. I I I , subpt.

7iv, c h. 4, § A(1)( m), during oral argument in Petitti , the Court a sked the Secre tary whether § 4.59 5 "a ppl[ ied] to [DCs ] that have no specific require ment for limit ation of motion, as well as those that do." The Secre tary replied that "[t]here could be instances wher e painful motion could be rele vant for a compensa

ble rating based on the fac ts of the case if it's not specific ally listed in the [DC] ," and cited the DC for hallux valg us–one of the DCs at issue here –as an example of a DC to which § 4.59 applied even though it was not predic ated on rang e of motion findings

. Petitti Ora l Arg ument at 31:39-52. This statement is direc tly contra ry to the Secre tary ' s arguments in this case and underc uts his relianc e on the M21-1 a s evidenc e that his curr ent litigating position represe nts his considere d view as to the applicability of § 4.59. See Martin v. Occ upational Safety & Health Rev iew Comm'n , 499 U.S. 144, 156 (1991) ( explaining that " ' litigating positions' ar e not entitled to defe renc e whe n they are mere ly

appellate counsel' s ' post hoc rationalizations' f or ag ency action" ). L ikewise, Ms. Southall-Norman notified the Court of at least two nonprec edential decisions wher e the Secre tary conce ded that the Boa rd provided inadequate rea sons or bases when it failed to addre ss entitlement to a compensa ble evaluation under § 4.59 for bilatera l foot disabiliti es 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. McD onald , 823 F.3d 630, 638-39 (F ed. C i r. 2 0 16) (examining B oard decisions and the Secre tary ' s litigating position in nonprec edential de cisions of the Court to deter

mine whether the Secre tary ' s proff ere d interpre tation of a regulation w as entitled
to Auer defe renc e). Given the inconsistenc y

in the Secre tary ' s positions re g arding the applicability of § 4.59 in this case and the afor ementioned ca ses, even if the lang uag e of the reg ulation wer e not plain, the Court could not conclude that t h e S ec re t ary ' s curr ent interpre tation of § 4.59 repr esente d his

T his section of the M21 -1 dire cts that " [f]un ctional loss as discussed in 38 CFR 4.4 0, 38 CFR 4.4 5, and 5 38 CFR 4.5 9 is not used to evaluate m uscu loskeletal conditio ns that do not inv olve ROM [(r ang e of m otio n)] fin dings ." M21 -1, pt. III , subpt. iv, ch. 4, § A (1 )(m ). A lthoug h the Court need not add ress the m erits of the M2 1-1 p ro vis ion to decid e this case, the Court re m inds the Secretary th at § 4.5 9, w hich governs " painfu l m otio n," pr ovides an avenue f or o b t a i ni ng a m inim al com pensable evaluation irresp ective of w heth er pain in a j oint or per iarticular region caus e s fu nctional loss. See Petitti , 2 7 Ve t.App. a t 42 6 n.8 (d iff erentiating be tw een §§ 4.4 0 and 4.4 5, considera tion of w hich

" m igh t result in a disability ratin g hig her th an the m inim um disability ratin g for a par ticular j oint" ba sed o n f un ctional loss, and § 4.5 9, considera tion of w hich m igh t result in " the m inim um disability rating for painfu l m otio n") ; Mitchell v. Sh inseki , 25 Vet.App. 32 , 37 (2 01 1) (stating that, " alt ho ug h p ain m ay cause a fu nctional loss, pain itself do es not constitute fun ctional loss" ) ( em phasis in origin al)).
8considere d view on the matter. See Correia , 28 Vet.App. at 167-68 (conc luding that the Secre tary ' s

proff ere d interpre tation to the Court of a differ ent portion of § 4.59 did not repr esent his considere d view of § 4.59 beca

use it was inconsistent with prior positions he took in other appe als befor e the Court where he had conce ded error based on a contrary interpre tation of § 4.59). Therefor e, eve n if § 4.59 wer e ambig uous as to whether it applied to the evaluation of musculoskeletal disabilities only under DCs predic ated on rang e of motion measure ments, Auer d ef er en ce to the Secre tary ' s interpre tation in this reg ard would not be war rante d. See Christ opher v. SmithKli ne Bee cham Corp. , 132 S. Ct. 2156, 2166 (2012) (expl aining that "de fer ence is

. . . unwar rante d when t h ere is rea son to suspect that the ag ency ' s interpre tation does not ref lect the ag ency ' s fair and considere d judgme nt

on the matter in question," such as "w h en the ag ency ' s interpre tation conflicts with a prior interpre tation, or when it appea rs that the interpre tation is nothing more than a convenie nt litigating position, or a post hoc rationalization advanc ed by an ag ency seeking to de fend past ag ency action
ag ainst attack" (interna l quotations and alterations omi tted)); Correia , 28 Vet.App. a t 168. I n sum, the plain lang uag e of § 4.59 i n d i ca t es that it is applicable to the evaluation of musculoskeletal disabiliti es in v o lv in g actua lly painful, unstable, or malalig ned joints or peria rticular
reg ions, reg ardle ss of whether the DC under which the disability is being evaluated is predic ated on rang e of motion measure ments. The Boa rd was there fore require d to addre ss § 4.59 in deciding Ms. S outhall-Norman' s entitlement to an initial compensa ble evaluation for a bilatera l foot di s ab i l i t y under DCs 5276 and 5280 prior to J une 2, 2014, and its failure t o d o s o re n d ers inadequate its

rea sons or bases for denying a compensa ble evaluation. See Schafrath v. Derwinski , 1 Vet.App. 589, 593 (1991) (holding that the Boa rd err s when it fails to addre ss all potentially applicable provisions of law a nd regulation). Althoug h the Secr etar y arg ues that the B oard w as not obligated to discuss § 4.59 beca

use the evidenc e of rec ord does not r efle ct painful motion, Secr etar y ' s Br

. at 10-11, the

rec ord contains competing evidenc e on that point. Compare R. at 572, 764, 1087, 1183 (vete ran' s complaints of foot pain with phy sical activity ), with R. at 1090 (Jul y 2007 VA medical examinations showing no pain on motion). See also Petitti , 27 Vet.App. at 425 (finding the terms "pa inful motion" and "a ct u al l y painful" joints to be sy nony mous and stating that the Court "c annot conce ive of a situation in which an ' actua lly painful' joint would not necessar ily connote a

joint that was painful

on motion"). That threshold question, as well as the rela ted but unaddre ssed question of whether the

9rec ord ref

lects an actua lly painful, unstable, or malalig ned joint or peria rticular reg ion sufficie nt to trig g er application of § 4.59, involves fac tfinding and wei gh i ng of evidence that is best left t o the Bo ar d

. See Deloach v. Shinseki , 704 F.3d 1370, 1380 (F ed. Cir. 2013) (re iterating th at "t h e evaluation and weig hing of evidenc e ar e fac tual deter minations c ommitt ed to the discretion of the fac tfinder" ); Hensley v. W est , 212 F.3d 125 5 , 1 263 (F ed. Cir. 2000) (noting "the g ener al rule that appellate tribunals are not appropr iate fora for initial fac t[ ]finding" ). Acc ording ly , the Court conclude s that rema

nd is war rante d to adequately addre ss those questions in the first instance. See Tucker v. W

est , 11 Vet.App. 369, 374 (1998) (holding that rema nd is the appropr iate reme dy "w here the Boa rd has incorre ctly applied the law, failed to provide an adequate statement of rea sons or bases for its deter

minations, or where the re cord is other wise inade quate" ). B. Impairment of Sphincter Control Ms. Southall-Norman nex t argues t hat t he Board pr ovided inadequate re asons or ba ses for its decision that she was not entitled to a separ ate compensa ble evaluation for impairment of sphincter control beca

use it improperly found her October 2013 Boa rd hear ing testimony reg arding
onset of fec al leaka g e inconsistent with her prior statements on that issue. Appellant' s Br

. at 10-13. She asser ts that, contra

ry to the Boa

rd' s finding , there is nothing inconsistent betwee n her statement
at t he October 2013 hear ing that she beg an experiencing fec al leaka g e 5 or 6 y ear s ear lier–i.e., betwee n October 2007 and 2008–and her statement at the J uly 2007 VA examination–more than 6
y ear s befor e October 2013–that she had fec al leaka g e but did not need to wea r an absorbe nt pad. Id

. at 11-12. The Secre tary responds that the veter an failed to car ry her burden of demonstrating err or beca use the Boa

rd' s neg ative cre dibilit y finding was based on numerous inconsistencies in her
statements about the onset, deg ree , and ty pe of leaka g e and the need to wea r absorbe nt materia ls and that, in any event, the evidenc e establishes that she does not have loss of sphincter control. Secre tary ' s Br . at 12-15. In reply , Ms. Southall-Norman contends that, contra ry to the Secre tary ' s argument, the B oard f

ound that she had sphincte r impairment during the re levant per iod, which is a favorable finding that cannot be disturbed on appea l. Reply Br

. at 4. She asser ts that the ac tual issue on appea l is whether she had fec al leaka g e war ranting a separ ate compensa ble evaluation and she reiter ates that the Boa rd d i d n o t l ay a proper foundation for finding her lay statements not

cre dible on that matter. Id . at 4-6. The Court ag ree s with the vetera n.

10I n rende ring its decision, the Boa rd is r equire d to pr ovide a written statement of rea sons or bases for its "f

i n d i ng s and conclusions[] on all materia l issues of fac t and law prese nted on the

rec ord." 38 U.S.C. § 7104(d)( 1). The statement must be adequate to enable a claimant to understand the prec ise basis for the Boa rd' s decision and to fac ilitate revie w in this Court. Gilbert v. Derwinski , 1 Vet.App. 49, 57 (1990). To comply with this require ment, the Boa rd must analy

ze the cre dibilit y and probative value of evidenc e, acc ount for evidenc e that it finds persua sive or unpersua sive, and provide rea sons for reje cting any materia l evidenc e favor able to the claimant. Caluza v. Brown , 7 Vet.App. 498, 506 (1995), aff' d per curiam , 78 F.3d 604 (F ed. Cir. 1996) (table)

. When assessing the cre dibilit y of lay evidenc e, the Boa rd may consider fac tors such as fac ial plausibilit y , bias, selfinterest, and consistency with other ev i d en ce of rec ord. Buchanan v. Nicholson , 451 F.3d 1331, 1337 (F ed. Cir. 2006); Caluza , 7 Vet.App. at 511. The B oard f

ound that there wer e inconsistencie s in Ms. S outhall-Norman' s lay statements, which led it to conclude that "ma ny of her asser

tions overst at e t h e s cope and/or sever ity of her
sy mptoms." R. at 10. One of the putative inconsistencies identified by the Boa rd was that at the J uly 2007 VA examination Ms. Southall-Norman descr ibed her fec al leaka g e as slight and stated that it did not require a pad, but at the October 2013 Boa rd hear ing she stated that she had worn liners for fec al leaka g e for "a

bout 5, 6 y ear s." R. at 11, 1187. Howeve r, the fac t that the veter an denied using a pad in J uly 2007 is not inconsistent with her l ater repor t in October 2013 that she bega n using a pad 5 to 6 y ear s ear lier–i.e., afte r J uly 2007 at some point betwee n October 2007 and October 2008. I n fac t, Ms. Southall-Norman' s ear lier statement i s co n sistent with her later testimony that her condition worsene d afte r service , forc ing her to start wea ring pads afte r separ ation, beca use the J uly 2007 examination was conducte d while she wa s still in service . R. at 1186. Thus, contrar y to the Boa rd' s finding , there does not appea r to be any inconsistency in Ms. Southall-Norman' s repor ts of when she beg an using absorbe nt materia ls beca use of fec al leaka g e, and the Boa rd' s rea sons or bases for impugning her cre dibilit y on that basis are inadequate. See Fountain v. McD onald , 27 Vet.App. 258, 273-75 (2015) (conc luding that the B oard e rre d in not adequate ly explaining seve ral putative discrepan ci es betwee n the appellant' s lay statements and the other evidenc e of rec ord); Caluza , 7 Vet.App. at 506; Gilbert , 1 Vet.App. at 57.

11Moreove r, the Boa rd improperly faul te d M s
. So uth a ll

- N o r ma n f o r n o t d if f e r e n ti a ti n g b etwee n the ty pes of leak age t h at s h e experience d over the y ear s, decla ring that the Aug ust 2011 VA examiner' s finding that the veter an had no fec al l ea k age "ca l l s into question the asser tion that all leaka g e was constant, much less that only pus and stool leaka g e wer e constant." R. at 12. Although the Boa rd is allowed to find a veter an not cre dible based on inconsiste ncies betwee n medical evidenc e and lay evid en ce , s ee Buchanan , 451 F.3d at 1337; Parseey a-Picc hione v. McD onald , 28 Vet.A p p
. 171, 175-76 (2016); Caluza , 7 Vet.App. at 511, it must acc ount for the potentially favor able ma t er i al ev i d en ce of rec ord when doing so. I n this case , the Board did not mention the
veter an' s repor

t to the J uly

2007 VA examiner that she ha d fec al l eaka g e every day , R. at 1087, or her October 2013 Bo ar d h ear ing testimony that she experience d fec al leaka g e afte r bowel movements, R. at 1184-85. This evidenc e lends support to h er l at er statements reg arding fec al leaka g e that the Boa

rd discounted, and th e Bo ar d ' s failure to acc ount for that favor able materia l evidenc e further diminis hes its rea sons or bases for fi nding the veter an not cre dible. See Caluza , 7 Vet.App. at 506; Gilbert , 1 Vet.App. at 57. Given the fore g oing inadequa cies in the Boa rd' s cre dibilit y analy sis, the Court will not acc ept the Secre tary ' s invitation to find those rea sons-or-ba ses err ors harmless based on the Boa rd' s finding that "[a]nal sphincter impairment has not be en established." R. at 15; see Secre tary ' s Br

. at 14-15. Although the Aug ust 2011 VA examination found no impairment of sphincter control, R. at 797, the

rec ord is reple te with other evidenc e sug g esting such impairment, wh i ch the Boa rd improperly discounted for the rea sons set forth above. See R. at 108 7 (J u l y 2007 VA examination repor t ref lecting daily fec al leaka g e), 1039 (vete ran' s November 2008 repor t that her hemorrhoids cause d "hor rible stains in [her] under[]gar ments") , 1184-87 (vete ran's Oc t o b er 2013 Boa rd hear ing testimony differ entiating betwee n bleeding , pus, and fec al leaka g e and indicating that she neede d to

wea r absorbe nt materia ls ever y d ay t o p reve nt fec al leaka g e from soiling her underg arme nts). Acc ording ly , the Court will rema nd the veter an' s impairment of sphincter control claim beca use the Court cannot conclude that the Boa rd' s rea sons or bases err ors in assessing the veter an' s cre dibilit y

wer e harmless. See 38 U.S.C. § 7261(b)( 2) (re quiring the Court to "take due acc ount of the rule of prejudicia l err or" ); W

agner v. United States , 365 F.3d 1358, 1365 (F ed. Cir. 2004) (" Where the eff ect of an e rror

on the outcome of

a proc eeding

is unquantifiable, howe ver, we will not speculate a s to

12what the outcome might have been had the err or not occur red." ); Arneson v. Shinseki , 24 Vet.App. 379, 389 (2011) (finding prejudice when err or "co u l d h av e altere d' the Boa rd' s deter minations); Tucker , 11 Vet.App. at 374.

III. CONCLUSION Upon consideration of the fore g oing, the portions of the J anuar y 5, 2 0 1 5 , Board decision denying entitlement to an initial compensa ble evaluation for a bilatera l foot disability prior to J une 2 , 2 0 1 4, and a separ ate evaluation for impairment of sphincter control are SET ASI DE and t h o s e matters are REMANDED fo r r e a d ju d ic ation consistent with this decision. On rema nd, Ms. SouthallNorman may prese nt any additional arguments and evidenc e to the Boa rd in ac co rd ance with Kutscherousky v. W

est , 12 Ve t .App. 369, 372-73 (1999) (per curiam order ). See Kay v. Principi , 16 Vet.App. 5 2 9 , 534 (2002). The Court reminds the Boa rd that "[a] rema

nd is meant to entail a

c ritical examination of the justification for [t he Boa rd' s] decision," Fletche r v. Derwinsk i , 1 V e t. A p p
. 394, 397 (1 9 9 1 ), and must be perf ormed in an expeditious manner in acc ordanc e with 38 U.S.C. § 7112. The ba lance of the a

ppeal is DI SMI SSED.

13