Citation Nr: 1636111 Decision Date: 09/15/16 Archive Date: 09/27/16 DOCKET NO. 10-38 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to an initial disability rating in excess of 10 percent prior to June 20, 2014, and in excess of 30 percent from June 20, 2014, for posterior tibialis tendon tendonitis, status post hindfoot fusion and calcaneus osteotomy (left ankle disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active service from March 1967 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, granted service connection for a left ankle disability and assigned a 10 percent rating, effective June 19, 2007; and denied service connection for a left foot disability. In December 2011, the Veteran underwent a left hindfoot fusion related to his service-connected left ankle disability. He was assigned a temporary total disability rating based on convalescence due to surgery under 38 C.F.R. § 4.30 from December 7, 2011 to February 1, 2012. This issue is not on appeal. The Veteran testified at a hearing in December 2013 before the undersigned. A copy of the transcript has been placed in the Virtual VA paperless claims processing system. The Board remanded this case in April 2014 to ascertain the present level of severity of the Veteran's left ankle disability, given that he had recently undergone surgery and testified as to more severe limitation of motion since the surgery. The Board also remanded the service connection claim for a left foot disability so that a VA examination could be provided to address the etiology of his left foot impairment. During the course of the remand, the RO granted an increased rating of 30 percent for the Veteran's left ankle disability and assigned an effective date of June 20, 2014 based on the date of the VA examination provided for the ankle. The Veteran has not indicated that he is satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The case is now returned for appellate review. The issue of service connection for a left foot disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Effective June 19, 2007, the Veteran's left ankle range of motion is at worst limited from 0 to 10 degrees of plantar flexion, and 0 to 15 degrees of dorsiflexion. 2. Effective February 1, 2012, the Veteran has ankylosis of the left ankle in dorsiflexion at 0 degrees. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent, but no higher, for the left ankle disability are met, effective June 19, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5271 (2015). 2. The criteria for an evaluation of 30 percent, but no higher, for the left ankle disability are met, effective February 1, 2012 (i.e., earlier than June 20, 2014). 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5270 (2015). 3. The criteria for an evaluation higher than 30 percent for the left ankle disability are not met, effective June 20, 2014. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5270 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. § 5103 and 5103A (West 2014) have been met. By correspondence dated in July 2007, VA notified the Veteran of the information and evidence needed to substantiate and complete the original service connection claim for a left ankle disability. The letter also notified the Veteran as to how VA assigns disability ratings and effective dates. The appeal for a higher rating for the left ankle disability is a downstream issue in that it arose following the initial grant of service connection and additional notice is not required. VA has also satisfied the duty to assist. The claims folder contains service treatment records, VA medical center records, and private treatment records. The Veteran underwent VA examinations in May 2008 and June 2014. The examinations include objective findings necessary for rating purposes and collectively discuss the functional effects due to the Veteran's left ankle disability. In addition, VA afforded the Veteran the opportunity to give testimony before the Board. The Board hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As noted in the introduction, the increased evaluation issue for the left ankle disability has been remanded for further development. In reviewing the record, the Board finds substantial compliance with the remand directives as concerns this issue. See Dyment v. West, 13 Vet. App. 141 (1999). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159. II. Increased Rating As noted in the introduction, the Veteran presently has staged ratings of 10 percent, effective June 19, 2007, and 30 percent, effective June 20, 2014, and seeks a higher rating for his service-connected left ankle disability. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. However, as discussed below, in this case, the record reflects that the Veteran's left ankle disability has remained constant with respect to the applicable schedular criteria. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The RO originally rated the Veteran's left ankle disability under 38 C.F.R. § 4.71a, Diagnostic Code 5024-5271 for limited motion of the ankle. However, in the most recent rating decision in November 2014, the RO changed the diagnostic code to 38 C.F.R. § 4.71a, Diagnostic Code 5270, on the basis of ankylosis of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion; and a 20 percent rating is warranted for marked limited motion. "Moderate" and "marked" limited motion are not defined by the diagnostic criteria. By way of reference, however, normal range of motion in the ankles is from 0 to 20 degrees of dorsiflexion (i.e., lifting toes up), and 0 to 45 degrees of plantar flexion (i.e., pointing toes down). 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5270, a 20 percent rating is warranted for ankylosis of the ankle in plantar flexion less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A 40 percent rating is assigned for ankle ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. A VA examination in May 2008 notes that an MRI of the left ankle showed subchondral cystic change of the talus. There also was lack of severe bony edema in the talar dome, which could be seen with chronic changes of avascular necrosis without articular collapse of the tibia. In addition there was high grade focal chondromalacia (early degenerative joint disease) of the tibial articular surface. On physical examination there was tenderness over the posterior tibialis tendon greater than other areas of the ankle. There was bony hypertrophy of the ankle joint, but no edema, swelling, heat, or redness. Range of motion studies showed left ankle dorsiflexion from 0 to 15 degrees, compared to usual 20 degrees, limited by pain and stiffness with sharp endpoint. Left ankle plantar flexion was limited from 0 to 10 degrees compared to usual 45 degrees, limited by pain and stiffness with sharp endpoint. The Veteran stood on his toes 10 times as repetitive motion exercise. There was no increased pain, weakness, fatigability, or incoordination of the left ankle after repetitive motion exercise. Strength of the left ankle dorsiflexion and plantar flexion was 5 out of 5 before and after repetitive motion. Resolving all doubt in the Veteran's favor, these findings more closely approximate marked limitation of motion in the left ankle. There is only 10 degrees of plantar flexion (out of 45 degrees of what is considered normal plantar flexion). In addition, there is less than 5 degrees of full range of dorsiflexion. Therefore a rating of 20 percent is warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5271, effective June 19, 2007. This is the highest schedular rating available under Diagnostic Code 5271. A higher rating for ankle disability is only available where there is ankylosis; thus, the provisions of 38 C.F.R. § 4.59 would not be relevant. See, e.g., Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). However, for this period, a higher rating based on ankylosis of the left ankle is not warranted, as ankylosis of the ankle was not shown at that time. Effective the date of a VA examination on June 20, 2014, the Veteran was assigned a 30 percent rating under Diagnostic Code 5270 based on ankylosis of the left ankle in plantar flexion between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. Range of motion testing showed left plantar flexion to 0 degrees with no pain, and dorsiflexion to 0 degrees with no pain. Repetitive motion testing was the same. Muscle strength was 5 out of 5 and there were no stability issues. The Veteran was noted to have ankylosis in good weight-bearing position, as well as left ankle edema with no muscle atrophy or weakness. His ankle was solidly fused and x-rays showed arthritis. While the Veteran was assigned a 30 percent rating, effective June 20, 2014, the Veteran has testified as to his increased limitation of motion since his surgery that was performed in December 2011. Thus, resolving all doubt in the Veteran's favor, the Veteran's 30 percent rating for his left ankle disability is assigned, effective February 1, 2012, the date that his temporary total rating based on convalescence due to left ankle surgery under 38 C.F.R. § 4.30 ended. A rating higher than 30 percent is not warranted under Diagnostic Code 5270, as there is no ankle ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees. There also is no abduction, adduction, inversion, or eversion deformity. Examination showed mild left ankle edema with no muscle atrophy or weakness, and no deformity. The left ankle was solidly fused. There also was a well-healed 11-cm linear scar on the left lateral ankle area without keloid formation, or evidence of inflammation, discoloration, or tenderness, and without functional significance. None the other rating codes specifically pertaining to ankle disabilities allow for a rating higher than 30 percent. See, e.g., 38 C.F.R. § 4.71a, Diagnostic Codes 5272-74. Taking pain on motion into consideration, as required by DeLuca, effective June 19, 2007, at most, the Veteran has motion of his left ankle from 0 to 10 degrees of plantar flexion, and 0 to 15 degrees of dorsiflexion. The record shows that the Veteran's ankle is limited to approximately one quarter of the way between what is considered normal range of plantar flexion motion under 38 C.F.R. § 4.71a, Plate II; but less than 5 degrees of what is full range of plantar flexion. Again, as previously noted, the Board finds that this type of limited motion more closely approximates what would be considered a marked limitation of motion. For this reason a higher rating of 20 percent is warranted under DC 5271, effective June 19, 2007. Effective February 1, 2012, a rating of 30 percent, but no higher is warranted for the Veteran's left ankle disability, status post-surgical fusion of the joint. To the extent that any higher ratings are denied, the Veteran genuinely believes that he is entitled to an increased rating for his left ankle disability. His factual recitation as to symptomatology associated with the ankle is accepted as true. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of his left ankle disability, and his views are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran's ankle and discussed all relevant details for purposes of rating his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). For all the foregoing reasons, the Board finds that a rating of 20 percent, but no higher, is warranted for the left ankle disability, effective June 19, 2007; and that a rating higher than 30 percent is not warranted; but an earlier effective date for the 30 percent rating is warranted, effective February 1, 2012. There are no objective medical findings that would support the assignment of any higher ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered. However, the record does not show the Veteran has been rendered unemployable as a result of his left ankle disability. The Veteran was still working during the time of the May 2008 VA examination report. By the time of the June 2014 examination, the Veteran was retired. The Veteran noted on the examination in June 2014 that he had retired mostly because of his wife's health, but also noted that his left ankle was suffering due to his work. Notwithstanding the Veteran's statements, the examiner determined in June 2014 that his left ankle tendonitis would not preclude gainful employment, and that his left ankle arthritis, status post fusion, might limit occupations that require prolonged standing/ walking, but not sedentary or light duty jobs. Therefore, any inferred TDIU claim is inapplicable in this case. III. Extraschedular Rating The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2015). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Most of the symptoms associated with the left ankle disability (i.e., limitation of motion and/ or ankylosis) are contemplated by the 20 percent and 30 percent ratings assigned under Diagnostic Codes 5271 and 5270, respectively. To the extent that any of the Veteran's left ankle symptoms are not contemplated by the diagnostic code applied, the medical evidence does not demonstrate any marked interference with employment or frequent periods of hospitalization as a result of the left ankle disability. Notably under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, there is no indication that the collective effect of the Veteran's service-connected disabilities amounts to an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to an initial disability rating of 20 percent, but no higher, for posterior tibialis tendon tendonitis, status post hindfoot fusion and calcaneus osteotomy (left ankle disability), is granted, effective June 19, 2007, subject to the rules governing the payment of monetary benefits. Entitlement to an initial disability rating of 30 percent, but no higher, for the left ankle disability, is granted, effective February 1, 2012, subject to the rules governing the payment of monetary benefits. Entitlement to an initial disability rating higher than 30 percent for the left ankle disability, effective June 20, 2014, is denied. REMAND The Veteran seeks service connection for a left foot disability. The service treatment records show several instances of treatment for left foot pain. In February 1968 the Veteran had complaints of pain and swelling in the left foot. There was no apparent evidence of fracture. The Veteran was given a wrap for the swollen area. The Veteran also was seen in the emergency room in January 1983 after falling onto a concrete floor and stubbing the fifth digit on his left toe. X-ray examination of the toe was normal. In May 1988 the Veteran complained of having left foot pain for eight years since a softball accident. X-ray examination was normal. After service, a VA examination in August 1998 shows bilateral cavus deformity in both feet with no swelling. A VA examination also was provided in June 2014. The Veteran's extensive history involving his foot and history was noted, including MRI testing in February 2007, which showed probable contusion or stress injury to the inferomedial navicular bone possibly associated with the insertion of the tibialis posterior tendon; and probable tenosynovitis of the tibialis posterior and flexor digitorum tendons. The examiner in June 2014 found that the Veteran's hallux valgus deformity on the left was not caused by his military service, or caused or aggravated by his left ankle disability, as the hallux valgus deformity was initially noted in 2004, and was symmetric with the right side. However, the examiner did not comment on the February 2007 MRI findings on the left foot of contusion or stress injury to the inferomedial navicular bone, and probable tenosynovitis of the flexor digitorum tendons. A May 2008 VA examiner determined that the possible contusion or stress fracture of the inferior medial navicular bone was not caused by military service. The rationale provided for this opinion was that there was no objective documentation that any injury other than the left posterior tibialis tendonitis could be documented in the available records as having occurred in the military. However, the examiner did not account for the Veteran's complaints of left foot pain during his military service, including his complaint in May 1988 that his left foot had been painful for 8 years since a softball injury. As an adequate examination has not been provided to address the etiology of the Veteran's left foot disability, another medical opinion is warranted. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any relevant treatment records pertaining to the left foot from the VAMC in Gainesville and/ or the U.S. Naval Station in Jacksonville, Florida, dated from September 2007 to present. The Veteran should be notified of any negative responses and provided with information concerning what further steps VA will make regarding her claim. 2. Ask the Veteran to identify any pertinent private treatment he has received pertaining to the left foot. Make reasonable efforts to obtain any relevant evidence identified by the Veteran, and notify him of any negative responses and what further steps VA will make regarding his claim. 3. Following the completion of the above development, return the VBMS file to the examiner who provided the left foot examination in June 2014. If this examiner is not available, schedule the Veteran for a VA left foot examination with a clinician of relevant experience to ascertain the origins or etiology of his left foot disability. The VBMS file should be accessible to the examiner for review in conjunction with any necessary examination and the examination report should reflect that the examiner reviewed the VBMS file. After a review of the VBMS and any necessary examination of the Veteran, the examiner should do the following: (a) Provide an assessment of all disabilities pertaining to the left foot, i.e., pes cavus, contusion or stress injury to the inferomedial navicular bone, probable tenosynovitis of the flexor digitorum tendons, hallux valgus, etc. (b) State whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's left foot disability was caused by any event, disease, or injury in service, including associated with complaints of left foot pain in service, and/ or first manifested in service or within one year of separation from service. (c) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left foot disability was caused, or alternatively, aggravated beyond the normal progression of the disorder, by the Veteran's service-connected posterior tibialis tendon tendonitis, status post hindfoot fusion and calcaneus osteotomy. In making these assessments, the examiner should consider the following: (a) The service treatment records show several instances of treatment for left foot pain. In February 1968 the Veteran had complaints of pain and swelling in the left foot. There was no apparent evidence of fracture. The Veteran was given a wrap for the swollen area. The Veteran also was seen in the emergency room in January 1983 after falling onto a concrete floor and stubbing the fifth digit on his left toe. X-ray examination of the toe was normal. In May 1988 the Veteran complained of having left foot pain for eight years since a softball accident. X-ray examination was normal. (b) After service, a VA examination in August 1998 shows bilateral cavus deformity in both feet with no swelling. (c) MRI testing in February 2007, showed probable contusion or stress injury to the inferomedial navicular bone possibly associated with the insertion of the tibialis posterior tendon; and probable tenosynovitis of the tibialis posterior and flexor digitorum tendons. The examiner in June 2014 found that the Veteran's hallux valgus deformity on the left was not caused by his military service, or caused or aggravated by his left ankle disability, as the hallux valgus deformity was initially noted in 2004, and was symmetric with the right side. However, the examiner did not comment on the February 2007 MRI findings on the left foot of contusion or stress injury to the inferomedial navicular bone, and probable tenosynovitis of the flexor digitorum tendons. The examiner also should review any newly obtained medical records and the Veteran's competent statements that he has experienced continuous left foot pain since service. The examiner is advised that the Veteran is competent to report his symptoms and his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted from a medical perspective, the examiner should provide a rationale for doing so. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 4. Then, review the claims file and ensure that all requested development actions have been completed in full. If any medical opinion does not adequately respond to the above remand directives, it must be returned to the examiner for corrective action. 5. Finally, after completing any other development that may be indicated, readjudicate the claim on the merits. If the benefit sought is not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs