Citation Nr: 1800845 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 11-02 776A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for a right ankle condition. 2. Entitlement to a disability rating in excess of 10 percent for a left wrist condition. 3. Entitlement to an effective earlier than November 6, 2009 for the grant of service connection for right ankle arthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran had active service from December 1973 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions dated in May 2008 and in November 2012 and promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2017, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. A transcript of the hearing is of record. The Board notes that the RO did not issue a supplemental statement of the case (SSOC) after receiving additional information in the form of a December 2017 disability benefits questionnaire (DBQ) regarding the right ankle increased rating claim. Normally this would require a remand to the RO in order for it to issue said SSOC readjudicating the right ankle claim prior to the Board's own adjudication. See 38 C.F.R. § 20.1304. However, during the October 2017 videoconference hearing the Veteran waived mandatory consideration by the agency of original jurisdiction (AOJ) of any new evidence received by VA. See Hearing Transcript, p. 16-17. Pursuant to 38 C.F.R. § 20.1304(c), the Board finds that this waiver obviates the need for the RO to issue a SSOC regarding the new evidence obtained by VA since the case was certified to the Board. Therefore, the Board may properly proceed with its adjudication of the matter. The issue of entitlement to service connection for a bilateral hip condition has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of entitlement to a disability rating in excess of 10 percent for left wrist condition is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran filed a request to reopen his previously denied claim of service connection for a right ankle condition that was dated November 6, 2009; this was the earliest statement received by VA expressing a desire or intention to seek such benefit. 2. Throughout the appeal period, the Veteran's right ankle condition has been productive of marked ankle disability; there has been no evidence of ankylosis of the ankle. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than November 6, 2009, for the grant of service connection for a right ankle condition have not been met. 38 U.S.C. §§ 5108, 5110, 7104 (2012); 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400 (2017). 2. For the entire period on appeal, the criteria for a rating in excess of 20 percent for a right ankle condition have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Earlier Effective Date for Right Ankle Condition The Veteran filed his initial claim seeking service connection for a right ankle condition in May 1981. The RO denied the claim in an August 1981 rating decision. The Veteran did not file a notice of disagreement, nor was new and material evidence received within one year of the rating decision. Thus, the August 1981 rating decision became final by operation of law, except that the claim could be reopened if new and material evidence was received. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156. The Veteran submitted a request to reopen his claim of entitlement to service connection for a right ankle condition that was received by the RO on November 6, 2009. The request to reopen was granted, and the service connection claim was eventually granted in a November 2012 rating decision. The Veteran was awarded a 20 percent disability rating for the right ankle condition effective November 6, 2009, the date that he filed his initial request to reopen his claim of entitlement to service connection for a right ankle condition. In an August 2013 notice of disagreement, the Veteran requested that he be awarded an effective date for the grant of service connection back to May 1981 when he originally filed his claim. That issue is currently before the Board. Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. Additionally, 38 U.S.C. § 5101 (a) provides that "[a] specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to be paid or furnished to any individual." In McTighe v. Brown, 7 Vet. App. 29 (1994), the United States Court of Appeals for Veterans Claims (Court) remarked that 38 U.S.C.A. § 5110 and 38 U.S.C.A. § 5101 clearly establish that an application must be filed. For VA compensation purposes, a "claim" is defined as "a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary." 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). It must "identify the benefit sought." Id. Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In addition, an application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. 38 C.F.R. § 3.400(q); see Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). "The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Sears v. Principi, 16 Vet. App. 244, 248 (2002). Thus, the effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). After considering the procedural background of this case, the Board finds that there is no basis upon which to find that the Veteran is entitled to an effective earlier than November 6, 2009 for the grant of service connection for a right ankle condition. As outlined above, the effective date of a claim is either the date on which evidence available to VA illustrated entitlement to service connection or the date of the claim, whichever comes later. Although the Board acknowledges that the Veteran filed a claim of entitlement to service connection for a right ankle condition in May 1981, it is unquestionable that the Veteran did not submit any new evidence or any correspondence indicating his disagreement with the subsequent August 1981 rating decision denying the claim of service connection within a year of that decision. As stated, after a year had passed from the date of the August 1981 rating decision the decision was final. While the RO eventually decided to reopen the right ankle claim, the effective date of that reopening extends back to the date that the request to reopen was received by the RO, which is the currently assigned November 6, 2009. No earlier correspondence from the Veteran or his representative can be construed as a request to reopen the claim of service connection for a right ankle condition. Accordingly, the earliest date for which service connection can be effective is the date of the request to reopen, November 6, 2009. Thus, the claim for an effective date earlier than November 6, 2009 is denied. Increased Evaluation of the Right Ankle Condition As detailed, service connection for a right ankle condition was granted in November 2012 and was assigned a 20 percent evaluation effective November 6, 2009. The Veteran seeks an increased rating during the entire period of the appeal. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The 20 percent disability rating for the right ankle condition was assigned pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5271, which concerns limited motion of the ankle. Under Diagnostic Code 5271, marked limitation of motion warrants a 20 percent rating, whereas moderate limitation of motion warrants a 10 percent rating. What is meant by "moderate" and "marked" limited motion is not defined by the diagnostic criteria; however, as a point of comparison, VA considers normal ankle dorsiflexion to be from 0 to 20 degrees and normal plantar flexion to be from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II. Post-service, private treatment records from Piedmont Orthopedics show the onset date of the Veteran's right ankle pain as July 2009. During a physical examination dated in December 2009, the Veteran reported pain in the peroneal tendons distal to fibula and worse with resisted eversion. However, no crepitance or major effusions were noted, and an X-ray examination revealed no major arthritis or any definite fracture. At this point the Veteran was diagnosed with right peroneal tendinitis. Subsequent records from Piedmont Orthopedics show continued treatment for the tendinitis. Similarly, post-service VA medical records show continued treatment for right ankle pain since the Veteran first reported experiencing worsening pain in early 2010. The Veteran was first afforded a VA examination to evaluate the nature and severity of the right ankle condition in March 2012. He reported that he sprained his ankle while in service in 1980 and had to wear a cast for 6 weeks. At the time of the examination, the Veteran was experiencing right ankle pain that interfered with his ability to work and perform physical labor. Range of motion testing showed plantar flexion of 10 degrees and dorsiflexion of 20 degrees or greater, with no decrease noted following repetitive use. Functional loss was noted in the form of less movement than normal and pain on movement. As reported on the examination, an April 2010 MRI showed increased signal intensity within the distal aspect of the peroneus brevis tendon, suggesting either a tendon tear or severe tendinitis, as well as mild degenerative joint disease at the tibiotalar joint. The examiner detailed that the ankle condition prevented the Veteran from standing for long periods of time. The Veteran was afforded a new VA examination to evaluate the severity of the right ankle condition in July 2014. He stated that following service he received conservative treatment from private physicians for his right ankle pain in the form of anti-inflammatory medications, ice and exercise. According to the Veteran, he sought more aggressive treatment in 2009 when the right ankle pain became more intense and began to interfere with his activities of daily living. At the time of the examination, the Veteran reported experiencing discomfort and instability in his right ankle and noted that he had been prescribed a brace for his right ankle to aid in stabilization of the joint. Range of motion testing showed plantar flexion of 10 degrees and dorsiflexion of 10 degrees, with no decrease following repetitive use. Functional loss was noted in the form of less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. In addition, the examiner found evidence of localized tenderness. As reported on the examination, a February 2014 X-ray examination showed talar breaking anteriorly on the right and degenerative changes throughout the right foot. It was the examiner's impression that the Veteran would be functionally limited from pursuing physically demanding work due to the limited ability to walk, stand, climb, or push; however, the examiner did not find any barriers to sedentary employment as due to the ankle pain. The examiner evaluated the limitations stemming from the right ankle condition as moderately severe. During the October 2017 hearing, the Veteran detailed that he was prescribed pain medication to alleviate the symptoms of the right ankle condition, and was also using an ankle brace that was prescribed by his VA physician. He also stated that he had received a hydrocortisone shot at one point in his right ankle. According to the Veteran the right ankle led to some intermittent instability. Most recently, the severity of the right ankle condition was reviewed by a Dr. D.B., who prepared a disability benefits questionnaire (DBQ) dated in December 2017. The Veteran reported chronic pain as his sole symptom. Range of motion testing showed no abnormalities in plantar flexion or dorsiflexion of 10 degrees, with no decrease in function or range of motion following repetitive use. That being said, the examiner did find that pain limited the Veteran's functional ability with repeated use and led to disturbance of locomotion. The examiner further noted that there was objective evidence of pain on passive range of motion testing as well as on non-weight bearing testing. After concluding the examination, it was the examiner's opinion that the right ankle condition limited the Veteran's ability to perform manual labor such that he could only do sedentary work. Upon consideration of the record, the Board finds that the disability picture for the right ankle condition does not warrant a rating in excess of 20 percent during any period of the appeal. Range of motion testing on the two VA examinations as well as the DBQ warrant no more than the already assigned 20 percent rating, as the Veteran had some degree of plantar flexion and dorsiflexion and thus was not shown to be completely unable to move his right ankle. The complaints of pain clearly account for the 20 percent rating throughout the appeal period for the right ankle as it produces marked limitation of motion. The Board also has considered other potentially applicable Diagnostic Codes that provide for the assignment of higher evaluations for the Veteran's right ankle disability. At no time throughout the appeal period has there been evidence of ankylosis, or the functional equivalent, of the right ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The 20 percent rating currently assigned is the highest possible rating for limitation of motion of the ankle, and was granted with consideration of the functional loss stemming from the Veteran's symptoms of pain and instability. For the additional functional loss to warrant a higher rating, that loss must rise to the level of ankylosis restricting plantar flexion to between 30 and 40 degrees and/or dorsiflexion to between zero and 10 degrees, which has not been shown. Therefore, the Board finds the assigned ratings adequately contemplate the functional impairment resulting from the Veteran's back disorder. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 208. It further warrants mentioning that the July 2014 VA examiner noted that there was radiographic evidence of arthritis of the right ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5003. This does not change the 20 percent rating, however, as arthritis is rated on painful motion under the joint or joints affected. The Board already has discussed why there has been no evidence of ankylosis of the ankle joint under Diagnostic Code 5270, even when considering the extent and impact of the Veterans pain on his range of motion. Accordingly, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his right ankle condition. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). Notably, entitlement to a total disability rating based upon individual unemployability is not raised by the record, as the Veteran continues to work, albeit on a part-time basis, and has not asserted that his right ankle condition precludes his employment. ORDER Entitlement to an effective date prior to November 6, 2009 for the grant of service connection for a right ankle condition is denied. A disability rating in excess of 20 percent for a right ankle condition is denied. REMAND The severity of the left wrist condition was last evaluated in a VA examination dated in March 2012. The Veteran reported experiencing intermittent pain with flare-ups of increased pain that prevented him from moving his left wrist and thus made it difficult to carry out basic activities of daily living. Range of motion testing showed palmar flexion of 10 degrees and dorsiflexion of 20 degrees. Functional loss was reported in the form of less movement that normal as well as pain on movement. No ankylosis was noted but the examiner did note localized tenderness. Upon completion of the examination, the examiner set forth a diagnosis of left wrist degenerative arthritis and found that the wrist condition had no impact on the Veteran's ability to work. During the October 2017 hearing before the undersigned, the Veteran asserted that his left wrist condition had worsened in severity since he was last evaluated by VA. Specifically, he noted that he wore a brace on his left wrist and that he experienced intermittent symptoms of achiness and numb fingers while wearing the brace. He also stated that he had to reduce his working hours due to physical limitations of his left wrist condition, to especially include hindering his ability to write with his left hand. The Board further notes that the March 2012 examination does not comply with applicable regulations. 38 C.F.R. § 4.59. Specifically, VA examinations for orthopedic disabilities must include joint testing for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). The March 2012 examiner did not test for pain in weightbearing compared with possible pain with non-weightbearing, nor did they test for pain on both active motion compared with passive motion. 38 C.F.R. § 4.59. Under these circumstances, the Board cannot adjudicate the claim for an increased rating of the left wrist condition, without further medical clarification. The Veteran is entitled to a new VA examination. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA orthopedic examination to evaluate the severity of the left wrist condition. All necessary tests, including X-ray examinations, should be conducted. The entire claims file, to include a complete copy of this remand, must be made available to the examiner, and the report of the examination should note review of the file. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been made and reflect the results of the testing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner must clearly explain why that is so. The examiner should also specifically note whether the left wrist is ankylosed. After reviewing the Veteran's complaints and medical history, the examiner must then render an opinion as to the extent to which the Veteran experiences functional impairments of his left and right knee. 2. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim on appeal must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. §§ 5109B, 7112 (2012). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs