Citation Nr: 1750163 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 13-03 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of ten percent for left degenerative arthrosis (left ankle disability) for the period prior to April 7, 2016, and in excess of 20 percent thereafter. 2. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1974 to July 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In the May 2011 decision, the RO granted service connection for a left ankle disability and assigned a 10 percent rating percent effective September 23, 2010. In the September 2011 rating decision the RO denied service connection for right ankle strain. In June 2011, the Veteran filed a notice of disagreement as to the ten percent rating for the left ankle disability, and in April 2012 filed a notice of disagreement as to his claim for service connection for right ankle strain. In December 2012 the Veteran was issued statements of the case as to both the left ankle disability and right ankle strain, and in January 2013 perfected his appeal to the Board. In his January 2013 VA Form 9, the Veteran requested a Board hearing. In correspondence received by VA in September 2015, he withdrew that request. The Board will therefore proceed to address his appeal. The issue of entitlement to service connection for a right ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT 1. For the period prior to April 7, 2016, the Veteran's left ankle disability manifested as marked limitation of motion, but not in ankylosis. 2. The Veteran's left ankle disability has not manifested as ankylosis during any period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent, but no higher, for a left ankle disability have been met for the period from September 23, 2010 through April 6, 2016. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DC)s 5010, 5271 (2016). 2. The criteria for an initial disability rating in excess of 20 percent for a left ankle disability have not been met for any period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71, 4.71a, DCs 5010, 5271 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. The Veteran's 20 percent disability rating for degenerative arthrosis of the left ankle is currently rated under DC 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2016). Diagnostic code 5010 directs that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a. Pursuant to diagnostic code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of ten percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. Although DC 5003 does not define what constitutes an "incapacitating exacerbation," the term is defined elsewhere in the Rating Schedule for the musculoskeletal system in regards to intervertebral disc syndrome and in the Rating Schedule for the digestive system. See 38 C.F.R. § 4.71a, DC 5243, Note 1; see also 38 C.F.R. § 4.114, DCs 7345 and 7354, Notes (2) (2016). As used therein, an incapacitating episode is a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. Id. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a ten percent evaluation. See 38 C.F.R. § 4.71a, DC 5003. For the purpose of rating disability for arthritis, the ankle is considered a major joint. See 38 C.F.R. § 4.45. Under DC 5271, ankle disability with moderate limitation of motion warrants a ten percent rating. A 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Standard range of ankle dorsiflexion is from zero to 20 degrees, and plantar flexion from zero to 45 degrees. See 38 C.F.R. § 4.71, Plate II. The terms "slight," "moderate," and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just," and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6. September 2011 private treatment records showed degenerative changes at the talonavicular joint with minimal spurring medially from the talus at the level of the medial malleolus of the left ankle, and minimal dorsal spurring of the talus with a normal navicular bone of the right ankle. October 2011 private treatment records show that the Veteran reported that it feels like something is broken when he walks, as if his ankles are going to give out. The physician reported an apparent old spiral oblique non comminuted fracture posterior tibia, and significant osteophyte formation to mid foot and anterior ankle bilateral. The Veteran was afforded a VA examination in January 2011 where he reported daily moderate left ankle pain with stiffness, severe weekly flare-ups precipitated by standing, prolonged walking, and heavy lifting. There were no constitutional symptoms or incapacitating episodes of arthritis and his gait was normal. The examiner reported left dorsiflexion of zero to ten degrees, and left plantar flexion zero to 12 degrees. The examiner found objective evidence of pain following repetitive motion, but no additional limitations after three repetitions of range of motion, and no joint ankylosis. There was mild degeneration arthrosis of the ankle noted without evidence of fracture subluxation, or significant joint effusion. No loose bodies or osteochondral defects were identified. A September 2011 VA examination report noted that both left ankle plantar flexion and extension end at ten degrees with pain beginning at zero degrees. After repetitive use testing, left ankle plantar flexion and extension ended at ten degrees, and the Veteran had additional limitation in range of motion of the left ankle following repetitive use testing as well as functional loss. He experienced less movement, weakened movement, excess fatigability, pain on movement, swelling, and interference with sitting, standing, and weight bearing. The examiner noted the Veteran experienced localized tenderness and pain on palpation of his joints and soft tissue of both ankles, but had normal muscle strength and no ankylosis. An imaging study found degenerative or traumatic arthritis in the left ankle. The examiner indicated that he did not have ankylosis of the ankle, subtalar and/or tarsal joint. In April 2016, the Veteran was provided with another VA examination where he reported left ankle pain which is worse if he walks or stands for more than a few minutes. He also described unrelated foot and ankle pain with probable neuropathy and possible intermittent gout attacks. The Veteran reported that he is unable to stand or walk long distances as a result of his ankle issue. The examiner noted left ankle dorsiflexion of zero degrees, and plantar flexion of zero to 20 degrees. Pain was noted at the examination, but it did not result in or cause functional loss. Plantar flexion range of motion exhibited pain, pain with weight bearing, but no crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. There was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time, but the report noted that the examination was neither medically consistent nor inconsistent with Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to say without speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. As to a section for additional factors contributing to disability, the examiner selected an option that the Veteran had "Less movement than normal due to ankyloses, adhesions, etc., Disturbance of locomotion." This is not a finding of ankyloses but merely a way of selecting that he had less movement than normal from a set of options. This is clear from the fact that the examiner indicated that he had 5 out of 5 strength for dorsiflexion and plantar flexion, indicated that he had motion of the right ankle, and did not check any selection box for ankylosis in the next section of the examination report. The examination report noted that ankle instability or dislocation was suspected, and documented degenerative or traumatic arthritis. Based on the above, prior to April 7, 2016, the Veteran's left ankle disability was characterized by pain with active motion and following repetitive motion, pain at rest, severe weekly flare-ups, and limitation of motion. As previously mentioned, the January 2011 VA examiner noted that the range of motion findings of record show dorsiflexion of ten degrees and plantar flexion to 12 degrees. As normal range of motion for the ankle is 20 degrees for dorsiflexion and 45 degrees for plantar flexion, the Board finds the Veteran suffers from marked limitation of motion as his range of motion for dorsiflexion and plantar flexion are substantially less than what is considered within the normal range. Also considered are the Veteran's other symptoms which must be evaluated in addition to his limitation of motion. Having considered the Veteran's reports of pain, flare-ups and limitation of motion, the Board finds his symptoms are consistent with the criteria for a 20 percent rating for marked limitation of motion. See 38 C.F.R. § 4.71, DC 5271. Therefore, the Board finds a rating of 20 percent, and no higher, is warranted for the period beginning January 22, 2011. The April 2016 VA examination also provides evidence of the Veteran's limitation of motion to the marked range. As previously discussed, the examiner noted left ankle dorsiflexion of zero degrees, and plantar flexion of zero to 20 degrees which warrants a 20 percent rating. See 38 C.F.R. § 4.71a. This 20 percent rating is the maximum rating available under DC 5271. The record does not show other symptoms attributable to the Veteran's left ankle disability that are not contemplated by this rating criterion. Additionally, as the left ankle disability warrants a compensable rating, a separate rating for the Veteran's traumatic or degenerative arthritis is not appropriate. Finally, the Veteran appears to have had marked limitation of motion from the date that service connection was established for the left ankle disability so the appropriate effective date for the 20 percent rating is that date. For a rating higher than 20 percent for an ankle disability, there must be evidence of ankylosis. See 38 C.F.R. § 4.71a, DC 5270. The evidence described above shows that the Veteran has not had ankylosis of the left ankle. To the extent that the examiner did not provide range of motion loss due to flare-ups or other any of the DeLuca factors, such error is harmless. Additional loss of motion due to such causes could not result in a rating for ankylosis and the Board is here ensuring that the Veteran has the maximum rating for limitation of motion for the entire appeal period. The Board finds that as no other rating criteria would allow for a higher rating based on these symptoms, a rating higher than 20 percent is denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board has not ignored the Veteran's remarks regarding foot and ankle pains with neurological symptoms and gout. However, these have not been attributed to his ankle disability. Thus, a separate rating for neurological symptoms is not warranted as due to his left ankle disability. The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of pain, instability and limitation of motion are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case neither the claimant nor the record has raised the question of unemployability due to service-connected disability. Therefore no further discussion of a TDIU is necessary. ORDER For the period from September 23, 2010 through April 6, 2016, a rating of 20 percent, but no higher, for the Veteran's service-connected left ankle disability is granted, subject to the regulations governing the disbursement of monetary benefits. A rating higher than 20 percent for the Veteran's service connected left ankle disability is denied for all periods on appeal. REMAND Service connection may be granted, on a secondary basis, for a disability, which is proximately caused or aggravated by an established service-connected condition. 38 C.F.R. § 3.310 (2016). As for whether or not the Veteran's right ankle disability is entitled to service connection secondary to the service connected left ankle disability, the September 2011 VA examiner opined that the Veteran's right ankle disability was less likely than not proximately due to or the result of the Veteran's service connected condition. While the examiner provided a sound rationale for his opinion regarding whether or not the Veteran's service connected left ankle disability caused his right ankle disability, the examiner did not opine as to whether or not the Veteran's service connected left ankle disability aggravated his right ankle disability. Therefore the Board finds the examination to be inadequate and a remand necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran is scheduled for a VA examination of his right ankle. The examiner must review the claims file in conjunction with the examination. The examiner is asked to provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected left ankle disability has worsened his right ankle disability beyond the natural progression of the right ankle disability (aggravated the right ankle disability). The examiner must include a complete rationale to support any opinion provided. If aggravation is found, the clinician should do the following: note when the Veteran's left ankle disability first began aggravating the identified condition; provide a baseline level of severity for the identified condition prior to aggravation by the left ankle disability; and identify the permanent, measurable increase in disability resulting from the aggravation. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the reviewing clinician should clearly and specifically so state in the examination report, and explain why that is so. 2. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issue remaining on appeal. If any benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs