Citation Nr: 1331083	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  09-03 492A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to an initial rating greater than 10 percent for left knee degenerative arthritis and patellar tendonitis.

2.  Entitlement to an initial rating greater than 10 percent for posttraumatic changes of the left ankle.

3.  Entitlement to an effective date earlier than February 17, 2009, for service connection for migraine headaches.  

4.  Entitlement to an effective date earlier than February 17, 2009, for service connection for residuals of a concussion.  

5.  Entitlement to an initial rating greater than 10 percent for migraine headaches.  

6.  Entitlement to an initial compensable rating for residuals of a concussion.  

7.  Entitlement to service connection for a bilateral hip disorder, to include as secondary to service-connected left knee degenerative arthritis with patellar tendonitis, posttraumatic changes of the left ankle, and/or residuals of a concussion.  

8.  Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee degenerative arthritis with patellar tendonitis and/or posttraumatic changes of the left ankle.

9.  Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected posttraumatic changes of the left ankle and/or residuals of a concussion.

10.  Entitlement to service connection for type II diabetes mellitus, to include as secondary to service-connected residuals of a concussion.

11.  Entitlement to service connection for bilateral dermatophytosis, to include as secondary to type II diabetes mellitus and service-connected posttraumatic changes of the left ankle and/or residuals of a concussion.

12.  Entitlement to service connection for erectile dysfunction, to include as secondary to type II diabetes mellitus and/or service-connected residuals of a concussion.

13.  Entitlement to service connection for a dental disorder, to include as secondary to service-connected residuals of a concussion.

14.  Entitlement to service connection for hypertension, to include as secondary to service-connected residuals of a concussion.

15.  Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee degenerative arthritis with patellar tendonitis, posttraumatic changes of the left ankle, and/or residuals of a concussion.  

16.  Entitlement to service connection for a right ankle disability, to include as secondary to service-connected left knee degenerative arthritis with patellar tendonitis, posttraumatic changes of the left ankle, and/or residuals of a concussion.

17.  Entitlement to service connection for arthritis of the hands, legs, and feet, to include as secondary to service-connected posttraumatic changes of the left ankle and/or residuals of a concussion.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel


INTRODUCTION

The Veteran served on active duty from February 1968 to February 1972. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions entered by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  In January 2012, the Board remanded the issues identified on the title page of this document, as well as the issue of entitlement to service connection for residuals of a concussion, to the RO via the VA's Appeals Management Center (AMC) in Washington, DC, so that the Veteran could be afforded a requested videoconference hearing before the Board and that proceeding occurred in April 2012, a transcript of which is of record.  Further remand action was entered in July 2012 to ensure that additional procedural and evidentiary development was undertaken.  While the case remained in remand status, the AMC granted service connection for residuals of a concussion and migraine headaches by rating decisions of January and April 2013, and to that extent, those issues are no longer within the Board's jurisdiction and are not further addressed herein.  The case has since been returned to the Board for further review.  

In his written statement of May 2013, the Veteran expanded his claims for service connection on a secondary basis, indicating that his service-connected left knee and left ankle disabilities were causing or aggravating existing disorders of his left and right lower extremities and low back.  He further alleged that inservice head trauma inclusive of concussions caused or aggravated his temporomandibular joint disorder, as well as cervical spine and upper and lower extremity disorders.  In addition, he claimed that multiple inservice injuries including three concussions were linked or causally related to traumatic brain injury, blurred vision, dizziness, diabetes mellitus, hypertension, erectile dysfunction, bilateral dermatophytosis, and a dental disorder.  Also raised was a claim for entitlement to total disability rating for compensation based on individual unemployability due to his service-connected disabilities (TDIU).  

The issues of entitlement to service connection on direct and/or secondary bases for traumatic brain injury, a cervical spine disorder, blurred vision, and dizziness, and for a TDIU, for which initial development and adjudication have not yet been undertaken, are as noted above raised by the record.  Therefore, the Board does not have jurisdiction over them and they are referred to the Agency of Original Jurisdiction for appropriate action.  

By his May 2013 letter to the AMC, the Veteran also submitted a timely notice of disagreement as to initial ratings and/or effective dates for service connection for migraine headaches and residuals of a concussion assigned by rating decisions entered in January and April 2013.  These matters are further addressed in the REMAND portion of this document which follows.  See Manlincon v. Derwinski, 12 Vet. App. 238, 240-41 (1999).  

The issues of the Veteran's entitlement to initial ratings for left knee and left ankle disorders are herein addressed on their merits.  All of the other remaining issues on appeal are REMANDED to the RO via the AMC.  VA will notify the Veteran-appellant if further action is required on his part.


FINDINGS OF FACT

1.  From October 1, 2007, to the present, the Veteran's degenerative joint disease of the left knee with patellar tendonitis is shown to be manifested by arthritic involvement, a noncompensable limitation of motion despite pain and stiffness, and patellar irritation, but without indicia of ankylosis, subluxation, instability, impairment of the tibia or fibula, meniscal defect, or genu recurvatum.  

2.  From October 1, 2007, to the present, the Veteran's posttraumatic changes of the left ankle are shown to be manifested by arthritic involvement and no more than a moderate limitation of motion, despite pain and stiffness; ankylosis or malunion of the os calcis or astragalus or evidence of a prior astragalectomy is not indicated.  


CONCLUSIONS OF LAW

1.  The criteria for the assignment of an initial rating in excess of 10 percent from October 1, 2007, to the present, for degenerative joint disease of the left knee with patellar tendonitis have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5010-5024 (2013).  

2.  The criteria for the assignment of an initial rating in excess of 10 percent from October 1, 2007, to the present, for posttraumatic changes of the left ankle have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5010-5271 (2013).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Remand Compliance 

As indicated above, this matter was previously remanded by the Board in January and July 2012 in order to accomplish certain development, including the conduct of specified VA medical examinations.  All of the actions sought by the Board through its prior development requests as to the matters herein addressed on their merits now appear to have been completed as directed, and it is of note that the Veteran does not contend otherwise.  See Stegall v. West, 11 Vet. App. 268, 270-71 (1998).

Duties to Notify and Assist

Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's duties to notify and assist have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000).  The notification obligation in this case was accomplished by way of a November 2007 letter from the RO to the Veteran, addressing the various claims for service connection advanced.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini, supra.  Here, full VCAA notice occurred prior to RO's initial adjudicatory action in June 2008, in accord with Pelegrini.  Moreover, the claims for initial ratings herein on appeal are downstream issues from that of service connection and further VCAA notice as to downstream matters is not required.  See VAOPGCPREC 8-2003 (Dec. 22, 2003) 69 Fed. Reg. 25180 (2004); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dingess v. Nicholson, 19 Vet. App. at 491.  In light of the foregoing, and in the absence of any allegation of prejudice by the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. 

VA has also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case.  The record includes the Veteran's service treatment records, in addition to a various medical examination and treatment reports compiled during postservice years.  It further includes the Veteran's many written statements regarding the issues in question and a transcript of his videoconference hearing before the Board in April 2012.  Moreover, the Veteran has not made the RO, AMC, or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claims herein addressed on their merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law  imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  

The record indicates that VA has afforded the Veteran multiple VA medical examinations in order to ascertain the nature and severity of the disabilities in question.  These evaluations were conducted in 2007, 2008, twice in 2009, and 2013, from which detailed clinical findings were obtained as to the nature and severity of his service-connected knee and ankle disabilities.   The reports from these examinations and the record as a whole are found to be sufficiently detailed as to permit fair and equitable consideration of the merits of the issues presented.  As such, further development action relative to the disabilities herein at issue is not required.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. 


Legal Authority Governing Claims for Initial Ratings

Disability ratings are intended to compensate impairment in earnings capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes (DCs) identify the various disabilities.  Id.  Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2. 

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2012).  Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  Id.; Esteban v. Brown, 6 Vet. App. 259 (1994).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Fenderson v. West, 12 Vet. App. 119, 126 (2001).  In Hart v. Mansfield, 21 Vet. App. 505 (2007), it was held that "staged ratings are appropriate for an increased-rating claim when the factual findings shown distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."  

Analysis

In this instance, service connection for degenerative joint disease and patellar tendonitis of the left knee and a left ankle disorder were established by rating action in June 2008.  At that time, a 0 percent evaluation was assigned for the left ankle disorder under DC 5271, effective from January 8, 2008.  A 10 percent rating was assigned for left knee disablement under DC 5010-5024, effective from January 8, 2008.  The effective date for service connection for each such disorder was modified by further rating action in September 2008 to that of October 1, 2007, without change in the individual rating assigned.  The 0 percent rating for the left ankle was increased to 10 percent, effective from October 1, 2007, by a rating decision in January 2009.  On the basis of the foregoing, the issues presented are whether the Veteran is entitled to initial ratings in excess of 10 percent for his left knee and ankle disorders.  

In his numerous written statements of record and in his testimony before the Board at his April 2012 hearing, the Veteran alleges that higher initial ratings for his left knee and ankle disorders are warranted.  He asserts that because of his disabilities he must carry much of his weight on the right side of his body, with this leading to an abnormal gait and improper weight bearing.  Pain and limitation of motion are noted by him to be associated with each disorder, as well as an inability to perform prolonged standing or walking.  Flare-ups of his symptoms are reported to occur three times weekly.  When prolonged walking or standing is undertaken, additional pain and loss of motion are noted to occur.  Knee locking and tightness are described.  

The record reflects that the Veteran's left knee and/or left ankle disorder has been evaluated by way of multiple VA examinations conducted during the course of this appeal, and he has been seen during the relevant time frame by a variety of private medical professionals for various complaints, although very little, if any, medical treatment of either his left knee or left ankle disability is indicated during the relevant time period.  

Posttraumatic arthritis and tenosynovitis are ratable as degenerative arthritis.  38 C.F.R. § 4.71a, DC 5010, 5024.  Degenerative arthritis is rated in accordance with 38 C.F.R. § 4.71a, DC 5003, which provides that when arthritis is established by X-ray findings it will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved.  If limitation of motion of the specific joint involved is not compensable under the appropriate DCs, a 10 percent rating is for application for each such major joint affected by limitation of motion.  

Regarding knee disablement, DCs 5260 and 5261 set forth rating schedules for limitation of motion of the leg. 38 C.F.R. § 4.71a, DCs 5260, 5261.  With respect to limitation of leg flexion, DC 5260 allows a zero percent rating for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and 30 percent for flexion limited to 15 degrees.  38 C.F.R. § 4.71a, DC 5260. 

Normal range of motion of the knee entails 0 degrees of extension and 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II (2013).  

DC 5261, which governs limitation of leg extension, provides a zero percent rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for a limitation to 15 degrees, 30 percent for a limitation to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for a limitation to 45 degrees.  38 C.F.R. § 4.71a, DC 5261.  Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same joint.  See VAOPGCPREC 9-04. 

With respect to disabilities specific to the knee, 38 C.F.R. § 4.71a, DCs 5256 through 5262, set forth relevant provisions.  Specifically, DC 5256 permits a 30 percent rating for favorable ankylosis in full extension, or in slight flexion between 0 degrees and 10 degrees, while a Veteran will garner a 40 percent rating with ankylosis in flexion between 10 and 20 degrees.  38 C.F.R. § 4.71a, DC 5256.  

DC 5257 governs other impairment of the knee.  It provides criteria for ratings of 10, 20 and 30 percent for slight, moderate or severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, DC 5257. 

DC 5258 provides for a maximum 20 percent evaluation for cartilage, semilunar, dislocated with frequent episodes of "locking," pain, and effusion into the joint, while DC 5259 allows a maximum of 10 percent for cartilage, semilunar, removal of, symptomatic.  38 C.F.R. § 4.71a, DCs 5258, 5259. 

Under DC 5262, impairment of the tibia and fibula characterized by malunion with moderate knee or ankle disability warrants a 20 percent evaluation, while malunion with marked knee or ankle disability garners a 30 percent rating.  Impairment of the tibia and fibula manifested by nonunion with loose motion, requiring a brace generates a maximum 40 percent evaluation under this DC.  

Separate ratings may also be assigned for knee disability under DC 5257 and DC 5003 where there is X-ray evidence of arthritis in addition to recurrent subluxation or lateral instability.  See VAOPGCPREC 23-97 and VAOPGCPREC 9-98.

As for the ankle disorder, moderate limitation of motion of the ankle is rated 10 percent disabling, whereas marked limitation of motion warrants a 20 percent evaluation.  38 C.F.R. § 4.71a, DC 5271.  The average normal range of motion of the ankle is from 20 degrees of dorsiflexion to 45 degrees of plantar flexion.  38 C.F.R. § 4.71, Plate II (2013). 

Under DC 5270, a 20 percent rating is warranted for ankylosis of the ankle in plantar flexion less than 30 degrees; ankylosis in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees warrants a 30 percent rating.  Ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with an abduction, adduction, inversion or eversion deformity, warrants a 40 percent evaluation.  38 C.F.R. § 4.71a, DC 5270.

Regarding either disability, assignment of a disability rating for a musculoskeletal disorder renders it necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995).  Under 38 C.F.R. §§ 4.40, 4.45, 4.59, the rating for an orthopedic disorder must reflect functional limitation which is due to pain, as supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. 

VA examination in November 2007 showed that extension of the Veteran's left knee was to 0 degrees and flexion was to 140 degrees, without any indication of any loss of motion on repetitive movement.  A complaint of stiffness following motion testing was nonetheless set forth.  Essentially similar actual or passive range of motion values were identified on a VA examination in May 2008; however, extension was limited to 2 degrees and flexion to 137 degrees with repetitive movement.  In April 2009, extension was to 0 degrees and flexion was to 135 degrees on passive testing; no change following repetitive motion was noted.  In September 2009, there was found to be pain on motion and extension at its best, either actively or passively, was to -2 degrees and flexion was to 141 degrees.  After repeated movement, no change in extension was in evidence, but flexion was reduced to 125 degrees.   In January 2013, flexion was to 140 degrees or more and extension was to 0 degrees, with there being no objective evidence of pain or any change following repetitive movement.  

The enumerated range of motion values denote limitation of motion of the left knee more often than not, be it by actual or passive testing or following repetitive movement.  The reductions in extension and/or flexion do not, however, warrant even the assignment of 0 percent ratings under DCs 5260 and/or 5261.  As indicated, pain is at times shown with motion, as and that are complaints of stiffness and flare-ups, among others, but range of motion remains unaffected except as indicated above and a preponderance of the evidence is against the assignment of any schedular evaluation in excess of 10 percent on the basis of pain or functional loss for the period dating to 2007.  

As reported by the VA examiner in 2013, no functional loss or impairment of the left knee was present and no effect on the Veteran's ability to work was indicated.  When evaluated in 2007, the Veteran despite many complaints reported he had not lost any time from his work as a turnpike supervisor as a result of his left knee and he was able to maintain his daily activities.  The Veteran has advanced contentions that his left knee is subject to flare-ups, weakness, locking, and fatigue, particularly following prolonged standing or walking, but interval evaluations do not substantiate any limitation of motion greater warranting a schedular evaluation in excess of 10 percent on the basis of limitation of motion.  While there is as indicated above objective evidence of painful motion, and to a limited extent a lack of endurance and incoordination as indicated in 2007, the record as a whole does not support the existence of weakness, fatigability, locking or other element, such as would further limit functionality or otherwise form a basis for a higher initial rating than 10 percent.  A preponderance of the evidence is against the assignment of a rating in excess of 10 percent based on limitation of motion or on the basis of pain or functional loss, including the reported flare-ups.  

Other clinical manifestations are shown by the record, to include knee tenderness, patellar irritability, and, at times, a limp.  That limp is not always shown clinically and it has been attributed by one or more examiners to an unrelated foot disability.  However, other clinicians have declined to attribute it to a specific entity and, on that basis, the Board finds it to be an element of the disability at hand.  These manifestations, either individually or collectively, are nevertheless not of such a nature or severity as to warrant the assignment of a higher or separate initial rating under any alternate DCs.  No ankylosis, subluxation, instability, tibial or fibular impairment, meniscal problem, or genu recurvatum, is demonstrated.  Similarly, diminished muscle strength or weakness is not present and there is no indication of any prior meniscal surgery or dislocation of cartilage.  On that basis, alternate rating criteria do not afford a basis to assign an initial rating in excess of 10 percent.  See 38 C.F.R. § 4.71a, DCs 5256, 5257, 5258, 5259, 5262, 5263.  

In all, the Board finds that while the Veteran's complaints of increased severity are not inherently incredible, they are largely unsubstantiated by the data recorded on various VA medical examinations since 2007.  As a preponderance of the lay and medical evidence is against entitlement to an initial schedular rating in excess of 10 percent for left knee disablement from October 1, 2007, to the present, denial of the claim is necessary.  See 38 U.S.C.A. § 5107(b); Fenderson, supra; Ortiz v. Principi, 274 F.3d 1361, 1364-1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 

Regarding the left ankle, a preponderance of the evidence is against the assignment of more than 10 percent schedular evaluation from October 1, 2007, to the present, on the basis of limitation of motion and associated arthritis or other pathology.  Although range of motion was tested in 2007 as normal, various complaints including those involving pain and stiffness were made known at that time.  In 2008, dorsiflexion was to 12 degrees, and plantar flexion was to 30 degrees.  In April 2009, dorsiflexion was to 10 degrees and plantar flexion was to 30 degrees, when the VA examiner referred to the left ankle disorder as "asymptomatic."  Further examination in September 2009 disclosed passive dorsiflexion to a maximum of 13 degrees, that was further reduced to 9 degrees with repetitive movement.  Plantar flexion was to 24 degrees, and with repetitive motion, it was increased to 27 degrees.  Testing in 2013 revealed dorsiflexion to 20 degrees and plantar flexion to 40 degrees, neither of which was associated with objective evidence of pain.  

On the basis of the foregoing, not more than a 10 percent initial rating for left ankle disablement is warranted under DC 5010, 5003, or 5271 from October 1, 2007, to the present.  Calcaneal spurring and/or arthritic involvement is shown from early on, with painful or stiff motion or actual reduction beyond normal values of dorsiflexion and plantar flexion.  Testing in 2007 yielded normal values, but those obtained in 2008 were abnormal and, in 2009, demonstrated reductions approximating 50 percent on two occasions.  Nevertheless, the next higher evaluation of 20 percent requires that there be a marked reduction in ankle motion and, in this instance, the motion values recorded, even during 2009, are not so reduced as to be viewed as being markedly limited, even with the application of 38 C.F.R. § 4.7.  

A preponderance of the evidence is otherwise against the proposition that pain and functional loss are so severe, even for a limited period, as to warrant any further schedular increase beyond 10 percent at any point during the appeal time frame.  Medical treatment for left ankle complaints is not indicated, and it is noted that the Veteran denied any pain or tenderness or flare-ups of the left ankle on the VA examination in 2013, noting rather he had periodic stiffness and weakness.  While some functional loss was indicated to result from ankle stiffness, no weakness or other clinical abnormality was present and there was no related work impairment to what was categorized by the clinician as a relatively asymptomatic left knee.  Pain and tenderness were present on examination in September 2009, when the Veteran specifically denied any weakness, instability, or guarding of movement.  Pain was not shown on evaluation in April 2009 or May 2008.  Symptom flares were denied in May 2008.  

Also indicated by the record in addition to motion loss and arthritis of the left ankle, is x-ray evidence of a mild cortical irregularity along the medial aspect of the left medial malleolus.  This was found by a VA examiner to be likely related to the Veteran's original service injury and, thus, must be considered part and parcel of the disability in question.  Its presence does not, however, warrant the assignment of any higher or separate rating on the basis of limitation of motion or other pertinent DC.  Also, there is no showing of ankylosis, malunion of the os calcis or astragalus, or evidence of a prior astragalectomy, as might warrant rating under any alternate DC.  See 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274.  

In sum, the Veteran's contentions of an increased level of disablement involving his left ankle are largely without clinical corroboration and inasmuch as a preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent for left ankle disability from October 1, 2007, to the present, denial of claim advanced is required.  See 38 U.S.C.A. § 5107(b); Fenderson, Ortiz, Gilbert, all supra.  

Extraschedular Consideration

A determination of whether the claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is required, and this is a three-step inquiry.  First, the Board must determine if the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  To do this, the Board or the RO must determine if the criteria found in the rating schedule reasonably describes the claimant's disability level and symptomatology.  If this is the case, the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral for extraschedular consideration is required. 

If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization.  If the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step--to determine whether, to accord justice, an extraschedular rating must be assigned.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).

In this instance, the Veteran's service connected left knee and ankle disorders encompass elements of limited motion and associated arthritis, patellar irritation, and a mild cortical abnormality of the left ankle, along with pain and stiffness.  These symptoms and manifestations are clearly accounted for under the applicable DCs discussed above.  See also 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca, supra.  There is otherwise no indication in the record that the pertinent DCs fail to describe adequately or contemplate the current disability level of these disorders.  That being the case, the question of extraschedular consideration need not proceed further, as there exists no basis for the assignment of any extraschedular rating for the disabilities at issue.  Thun, supra.  


ORDER

An initial rating in excess of 10 percent for degenerative joint disease and patellar tendonitis of the left knee is denied.  

An initial rating in excess of 10 percent for posttraumatic changes of the left ankle is denied.  


REMAND

As indicated in the Introduction above, the Veteran has recently amended many of his claims for service connection by asserting that certain claimed disorders are secondary to his service-connected disabilities, including left knee arthritis and tendonitis, posttraumatic degenerative changes of the left ankle, and/or residuals of a concussion.  These amended claims have not been subject to initial development or adjudication by the RO and remand is necessary to effectuate all needed actions.  

As to certain issues previously developed and adjudicated by the RO, the Board notes that by its July 2012 remand the AMC was directed to afford the Veteran a VA examination with respect to the nature and etiology of his claimed diabetes mellitus.  A disability benefits questionnaire for diabetes mellitus was completed in August 2012, but without an examination.  In addition, the VA medical professional who completed the referenced questionnaire reported a diagnosis of diabetes mellitus type II, but, without elaboration, also indicated that the criteria for diagnosis of diabetes mellitus were not met and that the Veteran had no service in Vietnam.  

As well, medical opinions obtained as to the onset and/or etiology of claimed a low back, left shoulder, and right ankle disorder are inadequate on the basis that the specific question posed by the Board was not appropriately addressed, be it related to claims for direct and/or secondary service connection.  "[N]ot due to," "not caused by," or "not related to" a service-connected disability is insufficient to address the question of aggravation under § 3.310(b).  Kyhn v. Shinseki, 24 Vet. App. 228, 240 (2011); Smith v. Shinseki, 24 Vet. App. 40, 49 (2010); Allen v. Brown, 7 Vet. App. 439 (1995).  As for a claimed dental disorder, a VA clinician found that the Veteran's periodontitis would have been in existence regardless of service, but the dispositive question of whether such disorder originated in service was not sufficiently addressed and no rationale was provided for the conclusion that the claimed entity was not secondary to a specific service-connected disorder.  Clinical evaluation disclosed periodontal disease, in addition to a temporomandibular joint disorder (TMJD), but no medical opinion as to the service onset of that TMJD was furnished.  Similarly, the medical opinion provided as to the Veteran's hypertension did not fully or satisfactorily address the question of the direct incurrence of that disability.  Inasmuch as compliance with the Board's directives as to the foregoing is lacking, remand for corrective actions is necessary.  See Stegall v. West, 11 Vet. App. 268, 270-71 (1998).  

Per Manlincon, remand for issuance of a statement of the case regarding the claims for initial ratings and earlier effective dates for service connection for migraine headaches and residuals of a concussion is required.  

Accordingly, this case is REMANDED for the following actions:

1.  Obtain any and all pertinent VA treatment records not already on file for inclusion in the Veteran's claims folder.  

2.  Per Manlincon, issue to the Veteran a statement of the case as to his entitlement to effective dates earlier than February 17, 2009, for grants of service connection for migraine headaches and residuals of a concussion, as well as his entitlement to an initial rating greater than 10 percent for migraine headaches and an initial compensable rating for residuals of a concussion.  In addition, advise him of the necessity of filing a substantive appeal in order to preserve any issue for appellate review.  

3.  Undertake actions pursuant to 38 U.S.C.A. §§ 5103, 5103A and  38 C.F.R. § 3.159 of the recently amended claims for service connection including entitlement to service connection for a low back disorder, bilateral hip disorder, bilateral dermatophytosis, left shoulder disorder, right knee disorder, right ankle disorder, and arthritis of the hands, legs, and feet, to include as secondary to service-connected left knee and left ankle disorders; and entitlement to TMJD, cervical spine and upper and lower extremity disorders, diabetes mellitus, hypertension, erectile dysfunction, bilateral dermatophytosis, and a dental disorder, to include as secondary to service-connected residuals of a concussion.  

4.  Afford the Veteran a VA examination in order to ascertain the nature and etiology of his claimed diabetes mellitus type II.  His VA claims file should be made available to the examiner in conjunction with the examination.  That examination should entail a complete medical history, a clinical evaluation, and any diagnostic testing deemed necessary by the examiner.  All pertinent diagnoses should then be set forth. 

The VA examiner is asked to address the following questions, offering a complete rationale for each opinion provided: 

a)  Is it at least as likely as not (50 percent or more probability) that the Veteran's diabetes mellitus type II, if any, originated during his period of active duty or is otherwise attributable to his active service or any event therein?  

b)  Is diabetes mellitus type II shown to have been manifested during the one-year period immediately following the Veteran's discharge from any period of active service of 90-days or more?  If so, how and to what degree any such diabetes mellitus was manifested should be fully detailed.  

c)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus type II, if any, was caused or aggravated by his service-connected residuals of a concussion?  If it is determined that his diabetes mellitus was worsened by a service-connected disorder, to the extent that it is possible the examiner should indicate the approximate degree of disability or baseline severity (e.g., mild, moderate, severe) of the disorder before the aggravation.

Aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms.  

5.  Obtain additional medical opinions from one or more VA medical professionals, as needed, as to the nature and etiology of the Veteran's claimed low back, skin, erectile dysfunction, right knee, right ankle, bilateral hip, left shoulder, and dental disorders, as well as his hypertension, bilateral dermatophytosis, and arthritis of the hand, feet, and legs.  

The VA medical professional is asked to address the following questions, offering a complete rationale for each opinion provided, with citation to the record:  

a)  Is it at least as likely as not (50 percent or more probability) that the Veteran's low back, skin, erectile dysfunction, right knee, right ankle, bilateral hip, left shoulder, and/or dental disorders, as well as his hypertension and arthritis of the hand, feet, and legs, if any, originated during his period of active duty or are otherwise attributable to his active service or any event therein?  

b)  Is hypertension and/or arthritis of the low back, hands, feet, legs, either hip, left shoulder, right knee, or right ankle shown to have been manifested during the one-year period immediately following the Veteran's discharge from active duty?  If so, how and to what degree any such disorder was manifested should be fully detailed.  

c)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hip, low back, and/or left shoulder disorders, his bilateral dermatophytosis, and/or right knee and right ankle disorders were caused or aggravated by his service-connected left knee and left ankle disorders?  If it is determined that any such disorder was worsened by a service-connected disability, to the extent that it is possible the examiner should indicate the approximate degree of disability or baseline severity (e.g., mild, moderate, severe) of the disorder before the aggravation.

d)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension, erectile dysfunction, bilateral dermatophytosis, and/or a dental disorder were caused or aggravated by his service-connected residuals of a concussion?  If it is determined that any such disorder was worsened by a service-connected disability, to the extent that it is possible the examiner should indicate the approximate degree of disability or baseline severity (e.g., mild, moderate, severe) of the disorder before the aggravation.

Aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms.  

6.  Lastly, adjudicate/readjudicate the issues on appeal on the basis of all of the pertinent evidence of record and all governing legal authority, to include 3.310.  If any benefit sought continues to be denied, issue to the Veteran a supplemental statement of the case that fully describes all of the evidence considered and then afford him a reasonable period in which to respond, followed by a return of the case to the Board for further review.  

The Veteran need take no action until otherwise notified.  The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999). 

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2013).



Department of Veterans Affairs