Citation Nr: 1801289 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-15 965A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a left wrist disorder. 2. Entitlement to an initial rating in excess of 10 percent for service-connected left ankle osteochondral lesion of talar dome with cartilage defect with degenerative changes. 3. Entitlement to an initial compensable rating for service-connected left lower extremity residuals of open wound, crush injury, cellulitis, resolved, to include scars. 4. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) prior to May 14, 2014. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Marine Corps from January 2002 to January 2006 and the U.S. Army from January 2010 to December 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia and Newnan, Georgia. Jurisdiction currently resides with the RO in Huntington, West Virginia. In June 2017, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. The Board notes that in a January 2013 rating decision, the RO initially considered and denied service connection for a left wrist disorder. The Veteran did not thereafter appeal this rating decision to the Board. This ordinarily would mean that the initial decision had become final and binding on him as to that issue based on the evidence then of record, in turn requiring the submission of new and material evidence to reopen this claim before reconsidering the claim on the underlying merits. See 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 20.200, 20.302, 20.1103. The record reflects, however, that in July 2014 - after the aforementioned RO rating decision dated in January 2013 - service treatment records from the Veteran's second period of active service, which were not of record at the time of the January 2013 denial, were associated with the claims folder. Governing regulation provides that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section, which concerns the need to have new and material evidence to reopen the claim under normal circumstances. See 38 C.F.R. § 3.156(c). The Board has interpreted the provisions of 38 C.F.R. § 3.156(c) to find that these additional service treatment records are "relevant" and the claims must be reconsidered, on a de novo basis. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. The issues of entitlement to an initial compensable rating for service-connected left lower extremity residuals and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence shows that the Veteran's left wrist ganglion cysts are related to service. 2. The evidence shows that the left ankle disability has more nearly approximated marked limitation of motion but not ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for left wrist ganglion cysts have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for an initial 20 percent rating, but no higher, for the left ankle disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Codes 5010-5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran of the information and evidence needed to substantiate his claims, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. To the extent the most recent ankle examination does not fully comply with the factors outlined in Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that 38 C.F.R. § 4.59 requires that an adequate VA examination of the joints must include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing); Southall-Norman v. McDonald, No. 15-1357, 2016 WL 7240720, at 3-4 (Vet. App. Dec. 15, 2016) (the plain language of § 4.59 indicates that it is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements but may be applicable to the evaluation of musculoskeletal disabilities without range of motion measurements), because the award herein for the Veteran's ankle is the highest rating possible for limitation of motion, the factors addressed in Correia are not applicable. The next higher rating would not depend upon range of motion measurements, as it requires ankylosis of the ankle joint. Thus, a remand on this basis would be of no benefit to the Veteran. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997) (The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the veteran."). Additionally, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the hearing. Service Connection The Veteran claims entitlement to service connection for a left wrist disability. Specifically, he contends that he first noticed that his wrist began hurting while he was doing push-ups during his first period of active duty when he felt a sharp pain on the dorsal side of his left wrist. Since that time, he claims he has been unable to do a regular push-up because of his left wrist. 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.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Post-service VA treatment records show that the Veteran has had recurring left wrist ganglion cysts. The Veteran has therefore met the current disability requirement. As noted above, the Veteran contends that these ganglion cysts first began during service. Service treatment records for the Veteran's first period of active duty show that in May 2002, he complained of left wrist pain for about five months. The assessment was insidious onset of extensor tendonitis. A September 2002 service treatment record shows that he complained of left wrist pain for about two weeks. There was loss of strength but no trauma and a normal x-ray; the assessment was left wrist pain. Service treatment records for the Veteran's second period of active duty show that the Veteran complained of swollen, stiff and painful joints at a November 2010 post-deployment examination. An April 2011 post-deployment re-assessment, conducted a few months after his December 2010 separation from active duty, shows that he again complained of swollen, stiff and painful joints, as well as numbness in his hands and feet. The examiner referred him for an evaluation for numbness in his hands. In light of the above, the Board finds that the Veteran has also met the in-service element. The dispositive question is whether there is any link between the Veteran's in-service left wrist injuries and his current left wrist ganglion cysts. In this regard, in December 2012, a VA examiner opined that it was less likely as not that the Veteran had a current left wrist disability that was related to service. The examiner noted that although the claims file showed service treatment records indicating tendonitis in May 2002 and left wrist sprain in September 2002, a December 2012 X-ray showed no significant degenerative changes and upon examination there was some decrease of motion in both wrists but normal muscle strength. The examiner added that medical literature indicates that tendonitis and sprains are acute conditions that resolve and that there was no evidence to support a chronic left wrist condition. In July 2017, the Veteran submitted a private medical opinion from Dr. Dauphin, a private orthopedist. The examiner noted that the Veteran's medical history included the May and September 2002 in-service diagnoses of tendonitis, the December 2012 VA examination indicating an essentially normal wrist, and a March 2016 treatment record noting a left ganglion cyst where the Veteran reported that he first noticed the left wrist pain in 2002 when he was doing pushups and felt a sharp pain in the dorsal aspect of his left wrist and that since that time, he has not been able to do a normal pushup. Dr. Dauphin stated that he "disagree[d] completely" with the VA examiner's statement that tendonitis is only an acute condition and that it cannot become chronic and opined that because the Veteran had a ganglion brought on by an injury back in 2002, the Veteran clearly has a chronic wrist condition based on traumatic rupture of the wrist capsule producing a cyst which was not diagnosed for many years, however, was probably present since the beginning. As such, Dr. Dauphin concluded that it was at least as likely as not that the Veteran's left wrist condition was a result of his military service. In sum, therefore, the Board finds that the evidence shows that the Veteran's left wrist ganglion cysts are related to service. As an orthopedist, the private examiner is competent to opine as to the relationship between an in-service musculoskeletal injury and a current one and although he did not explicitly state that he reviewed the claims file, it is clear based on his recitation of the pertinent facts, that he was apprised of the relevant medical evidence. Moreover, unlike the VA examiner, the private examiner's opinion is supported by the evidence of record. In this regard, the VA examiner's statement that the Veteran's in-service injuries were acute and resolved in service is inconsistent with the service treatment records from the Veteran's second period of active duty which showed that he complained of swollen, stiff and painful joints as well as the April 2011 post-deployment re-assessment where he again complained of swollen, stiff and painful joints and numbness in his hands and feet and was referred for an evaluation for numbness in his hands. In contrast, the private examiner's statement that the in-service injury could result in a chronic condition is supported by the facts in this case, to include the service treatment records that were received in July 2014 and, as such, the Board affords comparatively more weight to that opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Accordingly, service connection for left wrist ganglion cysts is granted. The Board additionally notes that since the service treatment records that were received in July 2014 are relevant to this award of service connection, in implementing the effective date for this grant of service connection, the AOJ should apply 38 C.F.R. § 3.156(c). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 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 (2017). The hyphenated diagnostic code in this case indicates that traumatic arthritis under Diagnostic Code 5010 is the service-connected disability and that limited motion of the ankle under Diagnostic Code 5271 is the residual disability. Diagnostic Code 5271 provides for a 10 percent rating for moderate limitation of motion and a maximum schedular rating of 20 percent for marked limitation of motion. Words such as "slight," "moderate," "marked," and "severe" as used in the various diagnostic codes are not defined in the VA 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." 38 C.F.R. § 4.6 (2017). The Veteran attended a VA examination in December 2012. He reported stiffness, achy pain and popping in the left ankle since 2011. He denied flare-ups that impacted the function of the ankle. Dorsiflexion was to 20 degrees and plantarflexion was to 45 degrees. The Veteran complained of pain subjectively but there were no objective signs of pain. Range of motion testing was the same after three repetitions and the examiner noted that there was no additional limitation in range of motion following repetitive use and there was no functional loss or impairment. The Veteran complained of localized pain or pain on palpation in the left ankle only, however. Motor strength was 5/5 in all planes of motion. Anterior drawer and talar tilt tests were negative. There was no ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, and astragalectomy. X-rays showed degenerative changes of the left ankle. The examiner noted that the functional impact of the left ankle was that he could stand for 15 to 20 minutes before needing to sit down due in part to left ankle pain and that he can only walk 40 to 50 yards with a cane before he has to stop due in part to left ankle pain. At a December 2014 VA examination, the Veteran reported constant pain in the left ankle that feels like "needles sticking me." He also reported crepitus. He reported flare-ups that impacted the function of the ankle which he described as limiting all physical activity. He reported functional impairment which limited him from walking, standing, and going up and down steps. Dorsiflexion was to 20 degrees and plantarflexion was to 45 degrees. The examiner noted there was pain on examination which did not result in functional loss but not pain on weight bearing. The Veteran complained of pain on palpation in the left ankle. Range of motion testing was the same after three repetitions and the examiner noted that there was no additional limitation in range of motion following repetitive use. The examiner was unable to state without speculating whether pain, weakness, fatigability or incoordination limited functional ability with repeated use over time. The examiner noted that the examination was not being conducted during a flare-up but noted that the Veteran complained of daily, severe, flare-ups lasing hours at a time. Motor strength was 5/5 in all planes of motion. There was no ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, and astragalectomy. The Veteran used a cane constantly for his left ankle. X-rays showed degenerative changes of the left ankle. Regarding functional impact, the examiner noted that standing or sitting for extended periods of time might be impacted but sedentary labor would not be impacted. At a July 2016 VA examination, the Veteran reported that his left ankle had worsened and that he experienced flare-ups almost on a daily basis but denied functional loss. Dorsiflexion was to 15 degrees and plantarflexion was to 35 degrees. The examiner noted there was pain on examination which did not result in functional loss. There was pain on palpation in the left ankle, which was mild to moderate in both the lateral and medical areas due to the service connected condition. There was no additional limitation after three repetitions. The examiner was unable to state without speculating whether pain, weakness, fatigability or incoordination limited functional ability with repeated use over time. Motor strength was 5/5 in all planes of motion. Instability was not suspected. There was no ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, and astragalectomy. The Veteran used a cane regularly for his left ankle. Regarding functional impact, the examiner noted that he cannot lift, carry or move heavy objects or stand or walk for a long time or a long distance. Based on the above, the Board finds that an initial 20 percent rating is warranted for the entire period on appeal. Although objective range of motion testing has generally been normal or near normal, there is evidence of significant functional impairment of the left ankle throughout the period on appeal. In December 2012, the Veteran complained of pain in the ankle which the examiner stated limited him to standing for only 15 to 20 minutes or walking only 40 to 50 yards at a time. In December 2014, the Veteran complained of daily, severe, flare-ups lasing hours at a time and which he described as limiting all physical activity. In July 2016, the Veteran reported that the left ankle had worsened and that he continued to experience flare-ups almost on a daily basis which the examiner opined would prevent him from lifting, carrying or moving heavy objects. In addition, the evidence shows that throughout the period on appeal, the Veteran has regularly needed to use a cane as a result of his left ankle. Accordingly, the Board finds that while there is some question as to whether the left ankle should be considered moderate or marked, the evidence more nearly approximates marked limited motion. 38 C.F.R. § 4.7. At no time during the period on appeal is a rating in excess of 20 percent warranted. None of the VA examinations demonstrated ankylosis, malunion of os calcis or astragalus, and astragalectomy. The Board has also considered 38 C.F.R. § 4.59 regarding the Veteran's painful motion. For the entire period on appeal, the Veteran has been assigned the maximum rating for the left ankle based on limitation of motion, and pain alone does not allow for a higher rating. See Johnston, 10 Vet. App. at 85 (implicitly holding that once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain). The Board considered the Veteran's lay statements regarding the functional impact of his service-connected left ankle disability, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), and these statements have supported the award herein. To the extent that the Veteran argues his symptomatology approximates symptoms warranting a rating in excess of 20 percent such as ankylosis, malunion of os calcis or astragalus, and astragalectomy, his statements must be weighed against the other evidence of record, and are outweighed by the examination findings of trained health care professionals. ORDER Entitlement to service connection for left wrist ganglion cysts is granted. Entitlement to an initial 20 percent rating, but no higher, for service-connected left ankle osteochondral lesion of talar dome with cartilage defect with degenerative changes is granted, subject to the regulations governing payment of monetary awards. REMAND As to the claim for an initial compensable rating for service-connected left lower extremity residuals of open wound, crush injury, cellulitis, resolved, to include scars, in January 2013, the RO granted service connection for this disability but found that because there was no currently diagnosed left knee or left leg disorder, a noncompensable rating based on residual scars was warranted. At the June 2017 hearing, the Veteran reported experiencing functional impairment related to the left lower extremity disability, to include trouble with weight bearing, difficulty ambulating, and pain. It was also noted that the left leg appeared smaller than the right and that it was not as straight as the right leg. The Veteran also stated that he believed that there may be some nerve involvement although he had not seen a neurologist. In this regard, at the December 2012 VA examination, the Veteran reported that he experiences a constant dull pain with shooting pain like needles in the left leg just above the knee on the inside aspect of the leg. He also reported a constant sharp pain on the inside portion of the left knee since the injury as well as a dull, achy pain on the outer portion of the left knee since the injury. As such, the suggestion of possible nerve involvement appears to be supported by the record. The Board notes, however, that the Veteran is currently also service-connected for a 20 percent rating for sciatic nerve radiculopathy of the left lower extremity and a 10 percent rating for femoral nerve radiculopathy, both as secondary to a service-connected lumbar spine disorder. Hence, to the extent the examiner finds any neurological involvement, it would be helpful if the examiner could distinguish the neurological manifestations arising from the lumbar spine disability from any symptoms arising from the left lower extremity disability. As to a TDIU, in correspondence dated June 2017, and in a July 2017 application for TDIU, the Veteran alleged that he was entitled to a TDIU. Although he has been granted a TDIU effective May 14, 2014, the issue of entitlement to a TDIU for the period prior to May 14, 2014 has been raised by the evidence of record as part and parcel of the appeals for increased ratings for the left ankle and left lower extremity. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to evaluate the current severity of his service-connected left lower extremity residuals of open wound, crush injury. The electronic claims folders should be made available to the examiner for review in conjunction with the examinations and the examiner should acknowledge such review in the examination report. Any indicated studies should be performed. The examination should be conducted in accordance with the current disability benefits questionnaire or examination worksheet applicable to the lower extremities and should include evaluation of any scars. If feasible, evaluation should be conducted by a neurologist. The examiner should fully describe any impairment arising from the initial in-service crush injury, to include any neurological involvement. If neurological involvement is found, the examiner should distinguish it from any sciatic and femoral nerve radiculopathy related to the service-connected lumbar spine disorder. The examiner should also fully describe and distinguish any impairment arising from pain on active motion, passive motion, in weight-bearing, and in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A complete rationale should accompany any opinion provided. 2. After completing any additional development deemed necessary, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The supplemental statement of the case should address whether a TDIU is warranted for the period prior to May 14, 2014. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs