Citation Nr: 1804347 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-03 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for residuals of a fracture of the left ankle. 2. Entitlement to service connection for a back disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from September 1986 to February 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in March 2010 and January 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the March 2010 rating decision, the RO, in pertinent part, granted service connection for residuals of a fracture of the left ankle and assigned a 10 percent disability rating effective November 30, 2009. The Veteran appealed for a higher initial disability rating. In the January 2011 rating decision, the RO, in pertinent part, denied service connection for a back disability. The Veteran appealed the decision. The Veteran testified before a Veterans Law Judge (VLJ) at an October 2014 videoconference hearing. A transcript of this hearing is of record. In October 2017, the Veteran was notified that the VLJ who held his October 2014 hearing was no longer employed by the Board. The Veteran indicated that he did not want another Board hearing and requested that the Board consider his case on the evidence of record. The issue of entitlement to service connection for a back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to May 18, 2016, the Veteran's residuals of a fracture of the left ankle was evidenced by, at most, 20 degrees of dorsiflexion, with pain at 15 degrees, and 45 degrees of plantar flexion, with pain at 40 degrees, and more closely approximates moderate limitation of motion of the left ankle. 2. As of May 18, 2016, the Veteran's residuals of a fracture of the left ankle was evidenced by 12 degrees of dorsiflexion and 20 degrees of plantar flexion, with evidence of painful motion, and more closely approximates marked limitation of motion of the left ankle. CONCLUSIONS OF LAW 1. For the period prior to May 18, 2016, the criteria for a rating in excess of 10 percent for the Veteran's residuals of a fracture of the left ankle have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 2. For the period beginning May 18, 2016, the criteria for a 20 percent rating for the Veteran's residuals of a fracture of the left ankle have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Relevant Laws and Regulations Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain. 38 C.F.R. § 4.40, 4.45 (2017). The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). Painful motion should be considered to determine whether a higher rating is warranted, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). Left Ankle The Veteran's residuals of a fracture of the left ankle was assigned an initial 10 percent disability rating from November 30, 2009 under DC 5271. 38 C.F.R. § 4.71a. The Veteran contends that his left ankle is worse than his assigned rating reflects. Under DC 5271, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate. 38 C.F.R. § 4.71a. The maximum rating of 20 percent is warranted where the limitation of motion in the ankle is marked. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Words such as "moderate" and "marked" 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). In a February 2010 private treatment record from OrthoMemphis, the Veteran had full range of motion for his left ankle dorsiflexion and plantar flexion with minimal discomfort. He also had normal strength in dorsiflexion and plantar flexion and no significant laxity was noted with anterior drawer testing. The Veteran reported pain and stiffness in his left ankle, but did not take any regular medication for the pain. The Veteran's March 2010 VA examination showed that his range of motion for his left ankle was at 10 degrees of dorsiflexion and 30 degrees of plantar flexion. There was no discomfort after repetitive range of motion testing. Thus, the Veteran had a limited amount of dorsiflexion motion, but almost full normal range of plantar flexion motion. Following a physical examination, the examiner found no evidence of abnormal weight bearing or pain on manipulation. The Veteran reported pain that worsened with weight-bearing and flare ups that occurred three to four times a day. He also stated that his left ankle disability affected his daily activities by limiting his ability to walk, stand, and exercise. The Veteran's November 2010 VA examination showed that his range of motion for his left ankle was at 20 degrees of dorsiflexion, with pain between 15 and 20 degrees, and 45 degrees of plantar flexion, with pain between 40 and 45 degrees. Thus, the Veteran had almost full range of plantar flexion and dorsiflexion motion, even with painful motion. He reported constant pain and flare ups with worse pain that occurred daily and lasted for about one hour. He stated that the pain was exacerbated by standing and walking and that he would only walk for thirty minutes or one mile before he had to stop due to severe pain. However, the Veteran had not had any recent therapy or injections, and took Mobic with moderate relief of his symptoms. He also did not use a brace, but occasionally used an Ace wrap. He stated that his left ankle disability affected his daily activities with difficulty with standing or walking for long periods, but also stated that it did not affect his ability to do his job as a bomb detective. In a September 2014 VA treatment record, the Veteran reported chronic left ankle instability and pain. He said that it felt like he "sprain[ed] his ankle on a daily basis. See September VA treatment record. The VA physician found the Veteran had excessive lateral instability. The Veteran's December 2015 VA examination showed that his range of motion for his left ankle was at 20 degrees of dorsiflexion and 45 degrees of plantar flexion. The examiner noted pain in dorsiflexion, but found that it did not result in functional loss. Thus, the Veteran had full range of plantar flexion and dorsiflexion motion. His muscle strength was normal. The examiner also found no evidence of ankylosis, shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of the os calcis or astragalus, or astragalectomy. The examiner found left ankle instability or dislocation. The Veteran occasionally used a brace for his left ankle. The Veteran's May 18, 2016 VA examination showed that his range of motion for his left ankle was at 12 degrees of dorsiflexion and 20 degrees of plantar flexion. After repetitive use testing, the Veteran's dorsiflexion had reduced to 7 degrees and his plantar flexion to 10 degrees due to pain and weakness. The Veteran reported flare ups with sharp pain with standing, walking, and running. His muscle strength was normal. The examiner found no evidence of ankylosis. The examiner found left ankle instability or dislocation. The Veteran constantly used an ankle splint for his left ankle. Based on the foregoing, the Board finds that the Veteran's left ankle disability prior to the May 18, 2016 VA examination was more closely approximated by moderate limitation of motion. The Board finds the March 2010, November 2010, and December 2015 VA examiners' medical findings highly probative to the issue of the severity of the Veteran's left ankle disability. Specifically, the examiner interviewed the Veteran and conducted a physical examination. Moreover, the examiner had the requisite medical expertise and had sufficient facts and data on which to base the conclusions. As such, the Board accords the VA examinations great probative weight. The Board has also considered the statements submitted by the Veteran in support of the claim, including his hearing testimony. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain and instability. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds the medical findings, as provided in the examination reports, are most persuasive and outweighs the Veteran's statements in support of his claim for a rating higher than 10 percent for this period. While the Board is aware of the Veteran's complaints of pain and instability, those symptoms are not shown by competent, objective evidence to be so disabling as to warrant the next higher 20 percent rating for limitation of motion under DC 5271. In this case, there is no objective, quantifiable evidence of additional range of motion loss due to pain on use, as alleged by the Veteran, that would equate to functional limitation to the extent that a higher rating was warranted under DC 5271. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40 ). Additionally, the Board has considered the Court's recent holding in Sharp v. Shulkin, 29 Vet.App. 26 (2017), addressing 38 C.F.R. § 4.40. In this case, the Board finds the musculoskeletal examinations of record are adequate for rating purposes and that a higher disability rating is not warranted based on limitation of motion, even when considering the functional effects of pain, to include during flare-ups and after repetitive use. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners. In the March 2010 and November 2010 VA examinations, the Veteran endorsed experiencing flare-ups and the examiner elicited information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. However, these reports, do not suggest that decrease in ROM would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record, to include the Veteran's lay statements. As such, further examination or opinion is unnecessary to decide the claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, the Board finds that the preponderance of the evidence weighs against an initial rating in excess of 10 percent for the Veteran's residuals of a fracture of the left ankle prior to May 18, 2016. However, based on the foregoing, the Board finds that as of the May 18, 2016 VA examination, the limitation of the left ankle motion more nearly approximates marked limitation of the left ankle. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca and Mitchell, supra. At his May 2016 VA examination, the Veteran's dorsiflexion had reduced to 12 degrees and plantar flexion reduced to 20 degrees. After repetitive use testing, the Veteran's dorsiflexion had further reduced to 7 degrees and his plantar flexion reduced to 10 degrees due to pain and weakness. Therefore, the Board finds that the Veteran's limitation of the motion of the left ankle is more closely approximated by a marked limitation and that the criteria for a 20 percent rating under DC 5271 are met as of May 18, 2016. A 20 percent rating is the maximum rating available under DC 5271. A rating in excess of 20 percent for the left ankle disability is not warranted under any other potentially applicable rating criteria pertaining to the ankle. Indeed, a rating in excess of 20 percent is not warranted under DC 5270 (for ankle ankylosis) or DC 5272 (for ankylosis of the subastragalar or tarsal joint) because the evidence does not demonstrate ankylosis or ankylosis of the subastragalar or tarsal joint for the left ankle. Also, the left ankle has not undergone an astragalectomy; therefore, a rating in excess of 20 percent is not warranted under DC 5274 for astragalectomy. Furthermore, the evidence does not demonstrate malunion of the os calcis or astragalus; therefore, a higher rating under DC 5273 (for malunion of the os calcis or astragalus) is not warranted. The Board has also considered DCs 5276, 5277, 5278, and 5283, which concern disabilities of the foot and provide for ratings higher than 20 percent. However, the Veteran has already been separately granted service connection for a left foot disability under DC 5279 since November 30, 2009. Hence, further discussion is not warranted at this time. The Board also finds that the weight of the evidence is against finding that the left ankle more closely approximates a severe foot injury such that the criteria for a rating in excess of 20 percent under DC 5284 for other foot injuries are met. Under DC 5284, a 30 percent rating is warranted for a severe foot injury. A 40 percent rating may be assigned if there is actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284. In this case, the weight of the evidence shows that the Veteran has limitation of left ankle motion, left ankle instability, and constantly uses an assistive device; however, the Veteran does not have left ankle ankylosis; and he experiences no associated, decreased sensation or muscle strength. For these reasons, the Board finds that the disability picture does not more closely approximate severe foot injury such that a 30 percent rating or higher under DC 5284 is warranted. The Board has also considered 38 C.F.R. § 4.59 regarding the Veteran's left ankle. In this case, however, the Veteran has already been assigned the maximum rating for the left ankle based on limitation of motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) The Board finds the May 2016 VA examiner's medical findings highly probative to the issue of the severity of the Veteran's left ankle disability. Specifically, the examiner interviewed the Veteran and conducted a physical examination. Moreover, the examiner had the requisite medical expertise and had sufficient facts and data on which to base the conclusions. As such, the Board accords the VA examination opinion great probative weight. The Board has also again considered the statements submitted by the Veteran in support of the claim, including his hearing testimony. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's statements and testimony serves, in part, as the basis for the assignment of a higher rating during this period of the appeal. Accordingly, the Board finds that the preponderance of the evidence meets the criteria for a 20 percent rating for the Veteran's residuals of a fracture of the left ankle, as of May 18, 2016. However, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 20 percent. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial disability rating in excess of 10 percent for residuals of a fracture of the left ankle prior to May 18, 2016 is denied. Entitlement to 20 percent disability rating, but no higher, for residuals of a fracture of the left ankle as of May 18, 2016 is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND In its February 2015 remand, the Board instructed the VA examiner to provide an etiological opinion as to whether it is at least as likely as not that the Veteran's back disability arose during active service or is otherwise related to any incident of service or caused or aggravated by his service-connected left ankle disability. In its remand directives, the Board directed the examiner's attention to four relevant items: (1) May 1988 service treatment records noting that the Veteran hit his back on a vehicle bumper resulting in an area of erythema and abrasion at T10;L2; (2) April 1992 service treatment records noting that the Veteran injured his back playing volleyball and that imaging showed sacralization of L5 on the right; (3) May 2004 private treatment records documenting a back injury when the Veteran fell and hit his back exiting a work vehicle; and (4) the Veteran's assertions that his left ankle instability caused his falls during service and in May 2004. In a December 2015 VA opinion, the VA examiner opined that the Veteran's back disability was less likely than not incurred in or caused by his active service and less likely than not proximately due to, the result of, or aggravated by the Veteran's service-connected left ankle disability. However, there is no indication from the December 2015 VA examination or opinion that the examiner considered the May 1988 or April 1992 service treatment records, or the Veteran's assertions that his falls in service and in May 2004 were caused by his left ankle instability. Accordingly, the Board finds that the December 2015 VA examiner's opinion is both inadequate and did not substantially comply with the February 2015 remand instructions. Hence, another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed back disability by an examiner who has not previously examined the Veteran. Provide the examiner with the claims file, including a copy of this REMAND, for review. After review of the claims file, the examiner should address the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran's back disability had its onset in or is otherwise related to service. In providing this opinion, the examiner is requested to address the May 1988 service treatment records noting a back injury resulting in an area of erythema and abrasion at T10-L2, April 1992 service treatment records noting a back injury from volleyball and imaging showed sacralization of L5 on the right, and May 2004 private treatment records documenting a back injury when the Veteran fell exiting a work vehicle. b. Is it at least as likely as not (50 percent probability or greater) that the Veteran's back disability was proximately caused by his service-connected left ankle disability. In providing this opinion, the examiner is requested to address the Veteran's assertion that his left ankle instability caused his falls during service and in May 2004. c. Is it at least as likely as not (50 percent probability or greater) that the Veteran's back disability was aggravated by his service-connected left ankle disability. A complete rationale for all opinions must be provided. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 2. After ensuring compliance with the development requested above, readjudicate the claims. If any decision remains adverse, issue a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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 owother appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs