Citation Nr: 1752476 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-20 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a left hip disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to a disability rating in excess of 10 percent for service-connected left ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from April 2008 to May 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge in July 2016; the hearing transcript is of record. In October 2016 and June 2017, the Board remanded the claims on appeal for additional development and an additional opinion. The matter has now returned for further adjudication. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). FINDINGS OF FACT 1. The evidence of record does not satisfactorily prove or disprove that the Veteran's left hip disability is secondary to the service-connected left ankle disability. 2. The evidence of record does not satisfactorily prove or disprove that the Veteran's low back disability is secondary to the service-connected left ankle disability. 3. Prior to November 10, 2016, the Veteran's left ankle disability was manifested by range of motion up to 30 degrees plantar flexion, up to 10 degrees dorsiflexion, and no ankylosis. 4. From November 10, 2016 onward, the Veteran's left ankle disability was manifested by range of motion up to 10 degrees plantar flexion, 0 degrees dorsiflexion, and no ankylosis. CONCLUSIONS OF LAW 1. Resolving all doubt in favor of the Veteran, the criteria for service connection for a left hip disability as secondary to left ankle sprain have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. Resolving all doubt in favor of the Veteran, the criteria for service connection for a low back disability as secondary to left ankle sprain have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The criteria for an initial rating greater than 10 percent prior to November 10, 2016 for service-connected left ankle disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2017). 4. The criteria for a 20 percent rating, but no higher, from November 10, 2016 and onward for service-connected left ankle sprain have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Letters sent to the Veteran dated February 2009 through August 2017 informed the Veteran of the evidence generally needed to support a claim for an increased disability rating, what actions needed to be undertaken, and how VA would assist in developing the claim. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA provided notice to the Veteran regarding her claims for service connection in January 2011 and August 2017. These letters advised the Veteran of the evidence and information necessary to substantiate her claims. Furthermore, the Veteran was informed of her and VA's respective responsibilities in obtaining such evidence and information. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA obtained the Veteran's service treatment records, VA treatment records, and private medical records. The Veteran was provided examinations in September 2009, November 2010, March 2013, November 2016, and June 2017. The Veteran stated in February 2009, March 2017, July 2017, and September 2017 that she had no other information or evidence to provide to substantiate her claim. She also waived the 30 day waiting period in February 2017 and August 2017 and stated she did not have any additional evidence regarding her appeal. All known and available records relevant to the issues decided below have been obtained and associated with the Veteran's electronic claims file. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection-Left Hip and Low Back Disabilities Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. § 3.303(a). The evidence must show the existence of a present disability, in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service, also known as the 'nexus' requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis is established when a disability is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran contends that she has left hip disability and low back disability that either had their onset in service or are caused or aggravated by her service-connected left ankle disability. The Veteran states she injured her hip, back, knee, and ankle on the left side of her body after she fell off a tower with a full ruck sack. August 2008 Private Medical Records; February 2011 Veteran Statement in Support of Claim; Transcript of July 2016 Hearing at 15. She states she exhibited bruising on her back while in-service. Id. In the alternative she contends that falls caused by her left ankle disability caused her to develop a left hip disability and low back disability. The Veteran has been diagnosed with a hip strain/sprain. Post-service treatment records and March 2013 VA examination. She was also diagnosed as having degenerative joint disease of the thoracolumbar spine. November 2016 VA examination; November 2013 VA Treatment Records. The Veteran received VA examinations in September 2009, March 2013, November 2013, and November 2016. The September 2009 VA examiner opined that the Veteran's ankle injury did not cause her hip disability since both occurred on the same day. The March 2013 and November 2013 examiners opined that the Veteran's hip and back conditions were less likely than not proximately due to or the result of the Veteran's left ankle sprain but did not provide any rationale. March 2013 VA examination; November 2013 VA examination. The November 2016 VA examiner conducted an in-person examination, reviewed the Veteran's claims file, and opined that the left hip disability was less likely than not incurred in or caused by the Veteran's service since the Veteran was not diagnosed until September 2009 with her hip disability, over a year after her separation from service. November 2016 VA examination. The VA examiner opined that it was less likely than not that the back condition was incurred in or caused by service. Id. The examiner reasoned the Veteran's back condition was not documented until two years after the Veteran's separation from service. Id. The VA examiner further opined in the November 2016 VA examination that it was less likely than not that the Veteran's contention of falls due to her left ankle condition are connected to her service-connected left ankle sprain as there is a lack of continuity of symptoms from the initial incident with the ankle until the onset of symptoms of the back and hip. November 2016 VA examination. Moreover, the November 2016 examiner opined that it was less likely than not that there was aggravation of the hip or back due to the left ankle sprain. Id. The examiner found no documentation to indicate that falls were the specific etiology of the back or hip conditions. Id. In the June 2017 Remand, the Board found that an addendum opinion was necessary to specifically address the Board's prior question as set forth in the October 2016 Remand directive as to whether any diagnosis or disease process of the left hip and back is consistent with a traumatic injury caused by falls. Specifically, the examiner was asked the following: "While there is no 'documentation' to indicate that falls were the specific etiology of the hip and back condition, please also specifically comment on whether any diagnosis or disease process of the left hip and back is consistent with a traumatic injury caused by a fall or multiple falls. For example, are there any degenerative changes or other pathology associated with the hip and back that is consistent with a traumatic injury essentially as described by the Veteran?" The VA examiner opined in the June 2017 DBQ that the Veteran's left hip disability and low back disability were less likely than not incurred in or caused by multiple falls. June 2017 DBQ. The examiner reasoned no medical evidence in the record supported injury or trauma related to falls with injury to the left hip or to the back. Id. The examiner stated the Veteran's hip and back conditions could not be associated with a specific injury such as a fall without resort to mere speculation given no medical evidence exists in the record to support that falls occurred. Id. The June 2017 VA opinion is not responsive to the Board's question. The Board declines to remand this matter any further. As such, the Board finds that the evidence of record does not satisfactorily prove or disprove that the Veteran's left hip disability and low back disability are secondary to the service-connected left ankle disability. In such circumstances, reasonable doubt is to be resolved in favor of the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 ("By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility."); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (reiterating that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits.")). Having resolved reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a left hip disability and low back disability have been met. Increased Rating - Left Ankle Sprain Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2017). Diagnostic Code 5271 provides a 20 percent rating is warranted for marked limitation of motion of an ankle. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271. Diagnostic Code 5270 provides for a 20 percent evaluation when there is ankylosis in plantar flexion less than 30 degrees. A 30 percent rating is for application when there is ankylosis in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. A maximum 40 percent evaluation is warranted when there is ankylosis in plantar flexion at more than 40 degrees; in dorsiflexion at more than 10 degrees; or ankylosis with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2017). By definition, ankylosis contemplates a total absence of joint mobility. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," Stedman's Medical Dictionary 87 (25th ed. 1990)). Normal ankle dorsiflexion is to 20 degrees, and normal plantar flexion is to 45 degrees. 38 C.F.R. § 4.71 (Plate II). The words "moderate" and "marked" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6 (2017). However, the Veterans Benefits Administration (VBA) has defined moderate limitation of ankle motion as being present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. VBA Adjudication Procedure Manual M21-1, III.iv.4.A.3.k. Marked limitation of motion is defined as limitation of less than five degrees dorsiflexion or less than 10 degrees plantar flexion. Id. VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The VA examination reports show increasing limitation of range of motion from September 2009. The January 2010 and November 2010 VA examinations showed the plantar flexion motion of the Veteran's left ankle was 0 to 30 degrees on active testing. The January 2010 VA examination also showed 0 to 35 degrees on passive testing, and no additional loss of motion due to pain or repetitive motion. On VA examination in November 2010, range of motion for left dorsiflexion was 0 to 10 degrees. The January 2010 and November 2010 examinations noted no finding of ankylosis of the left ankle. There was objective evidence of pain following repetitive motion and with active motion on the left side. See November 2010 VA examination. The Veteran's November 2016 VA examination showed initial range of motion for plantar flexion was 0 to 20 degrees and dorsiflexion was 0 to 5 degrees. The VA examiner documented ankylosis in the Veteran's left ankle. November 2016 VA examination. Pain was noted on examination which caused functional loss. Id. The Veteran's June 2017 VA examination showed initial range of motion for plantar flexion to 10 degrees and dorsiflexion to 0 degrees. There was no evidence of pain or ankylosis on exam. June 2017 VA examination. The Veteran's left ankle severely affected daily activities including chores, recreation, and traveling. November 2010 VA examination. The left ankle disability caused decrease mobility resulting in increased absenteeism from work. Id. The Veteran reported having functional loss or frequent impairment of her left ankle, flare-ups, and weakness and pain in the left heel with prolonged walking and standing. November 2016 VA examination; June 2017 VA examination. The examiner stated limited motion on dorsiflexion would affect use of steps and walking uphill. November 2016 VA examination. In March 2010, the Veteran stated her ankle pain interfered with her sleep and physical activity. March 2010 VA Treatment Records. The Veteran's treatment records show the left ankle giving way and exhibiting pain and weakness. November 2013 Treatment records. However, the Veteran reported in April 2015 and August 2016 that she had no falls or problems getting around her house within the past 12 months. April 2015 VA Treatment Records; August 2016 VA Treatment Records. The Veteran's September 2009 and November 2010 VA examinations show range of motion at worst 0 to 30 degrees plantar flexion and 0 to 10 degrees dorsiflexion, falling within moderate limitation of motion. The Veteran's November 2016 and June 2017 range of motion show findings that fall within the marked limitation of motion of the ankle. The Veteran's range of motion limitations fall into two different ratings categories. The Veteran's November 2016 VA examination noted a finding of ankylosis of her left ankle. However, the Veteran's June 2017 VA examination indicates that the Veteran's left ankle is not ankylosed which is consistent with the earlier September 2009 and November 2010 VA examinations which did not find ankylosis of the left ankle. The Board therefore finds that the ankylosis notation is not an accurate depiction of the Veteran's disability. Indeed, the examiner for the June 2017 VA examination found that the Veteran is unable to dorsiflex and minimally plantar flex the left foot partly due to left foot drop, which the examiner indicated is not related to the service connected left ankle sprain. The findings do not clearly delineate between the limitation of range of motion caused by the service connected left ankle sprain and the limitation of range of motion caused by the nonservice connected left foot drop. At this time, the Board resolves reasonable doubt in favor of the Veteran and attributes the loss of range of motion to the left ankle sprain. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that if it is medically determined that the impairment attributable to nonservice-connected and service-connected conditions cannot be distinguished, the benefit-of-the-doubt doctrine requires that all such impairment be attributed to the service-connected disability). The Board therefore maintains the Veteran's 10 percent rating prior to November 10, 2016, the date of the November 2016 VA examination. Thereafter, the Veteran is entitled to an increased rating of 20 percent under DC 5271 for left ankle sprain. The Veteran has not raised any other issues with respect to the increased rating claim for her left ankle condition, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to service connection for a left hip disability secondary to service connected left ankle disability is granted. Entitlement to service connection for a low back disability secondary to service connected left ankle disability is granted. Entitlement to a rating in excess of 10 percent prior to November 10, 2016 for left ankle sprain is denied. Entitlement to a rating of 20 percent on and after November 10, 2016 for left ankle sprain is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs