Citation Nr: 1805832	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  14-01 655	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for service-connected pes cavovarus, status post ankle surgery (left ankle disability).

2.  Entitlement to service connection for a headache condition, to include migraines.

3.  Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Fowler, Associate Counsel


INTRODUCTION

The Veteran had active duty service in the United States Navy from September 2006 to September 2012.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.  Subsequently, jurisdiction transferred to the RO in San Diego, California.

The issues of entitlement to service connection for headaches, to include migraines, and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

For the period on appeal, the Veteran's limitation in her range of motion in her left ankle is marked.


CONCLUSION OF LAW

The criteria for an initial left ankle disability rating of 20 percent have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.71a, Diagnostic Code 5271 (2017).








REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA's duty to notify was satisfied by a July 2012 letter.  38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The Veteran has not identified any additional records that should be obtained prior to a Board decision.  See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Veteran was provided two VA examinations in September 2012 and August 2016.  The examinations are adequate for the purposes of the instant claim, as they involved a physical examination of the Veteran and a review of the claims file, and provide discussions of pertinent symptomatology, functional impact, and sufficient rationales for all opinions expressed.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

Legal Criteria and Analysis

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C.A. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant.  38 C.F.R. § 4.3 (2017).  

Staged ratings are 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.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Veteran's disability should be viewed in relation to its history.  38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection.  Fenderson v. West, 12 Vet. App. 119 (1999).  

The Veteran seeks entitlement to an initial rating in excess of 10 percent for her service-connected left ankle disability.  The Veteran's left ankle disability is rated under Diagnostic Code 5271, ankle limited motion.  Under this Diagnostic Code, a 10 percent rated is warranted with moderate limitation of motion and a 20 percent rating is warranted with marked limitation of motion.  38 C.F.R. § 4.71a, Diagnostic Code 5271.  Normal dorsiflexion is 20 degrees.  Normal plantar flexion is 45 degrees. 38 C.F.R. § 4.71, Plate II (2017).

When a rating of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors.  Those factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse.  38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995).  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80 (1997). 

At the Veteran's September 2012 VA examination, she reported pain with weight bearing and when lifting her heel.  The examiner tested the Veteran's dorsiflexion and plantar flexion.  The Veteran's dorsiflexion pain began at 10 degrees with extension to 15 degrees and plantar flexion pain began at 20 degrees with extension to 30 degrees.  The Veteran described her flare-ups as pain with walking and weight bearing.  The examiner did not find the Veteran to have ankylosis.

At the Veteran's August 2016 VA examination, the examiner noted that the Veteran reported chronic left ankle pain and a worsening in pain since the September 2012 VA examination.  Upon examination, the examiner noted that the Veteran had an abnormal range of motion.  Veteran's dorsiflexion was to five degrees and her plantar flexion was to 30 degrees.  The examiner noted the Veteran's reported pain level as a constant six out of ten "crampy pain" with flares to eight out of ten sharp stabbing lateral left ankle pain that increases with prolonged standing or walking greater than 20 minutes.  The examiner noted that the Veteran regularly wears an ankle brace and that she has to "mindful" of where she walks and trips while walking on uneven surfaces regularly due to her decreased dorsiflexion.  The examiner did not find the Veteran to have ankylosis.

In a January 2014 statement, the Veteran detailed the severity of her left ankle disability.  She stated that she has constant pain that limits her daily activities.  She further stated she cannot rotate her ankle without feeling "severe pain" and that she experiences flare-ups in cold weather.  The Veteran describes the flare-ups as her ankle locking up and getting stiff.  She reports that her ankle is weak and gives out when she tries to put pressure on it.  The Veteran further reports having to walk with an uneven gait.

The Board finds the Veteran competent to report the manifestations of her left ankle disability, and that her reports are credible.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  

Based on the lay and medical evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's left ankle disability is more closely described as marked limitation of motion throughout the appeal period.  Therefore, an initial 20 percent evaluation is warranted for the Veteran's left ankle disability.

The Board considered application of Diagnostic Code 5270; however, it is not applicable, because the Veteran's left ankle is not shown to have any ankylosis at any time throughout the appeal period.  She retains mobility in her left ankle and therefore does not manifest ankylosis of any form.  See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992).

Additionally, consideration of Diagnostic Codes 5272, 5273, and 5274 is not warranted.  Since each have a schedular maximum of 20 percent, they are not more favorable to the Veteran.


ORDER

Entitlement to an initial rating of 20 percent for a left ankle disability is granted.


REMAND

While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim.  See 38 C.F.R. § 19.9.  In this regard, remand is necessary so that a new medical opinion may be provided for the Veteran's headaches because the existing opinion is inadequate, and so the AOJ may develop the issue of entitlement to a TDIU.

Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 

In the present case, the Veteran filed a claim for entitlement to service connection for migraine headaches.  However, the Veteran never received a VA examination for headaches, to include migraines.  In a September 2012 VA examination, the examiner stated the Veteran does not have a diagnosis of a headache condition, rather she had an eyesight issue.  The examiner found the headache questionnaire "not germane" and she received an eye examination.  However, the Veteran's service treatment records show past treatment for headaches, including migraine headaches.  Further, the Veteran states that she continues to get headaches that are painful and that limit her daily activities.  Based on the above, the Veteran needs a new VA examination.

Additionally, the issue of a TDIU has been raised by the record.  The Veteran reported that her service-connected disabilities prohibit her from a substantially gainful occupation.  Currently, the Veteran is eligible for consideration for a schedular TDIU, because she has a combined rating of 70 percent, with one combined disability rated at 40 percent.  However, the Veteran's employment status is unknown.  As the AOJ has not had an opportunity to develop and adjudicate this issue in the first instance, to include providing the Veteran with the formal TDIU application form (VA Form 21-8940), a remand is warranted.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine the nature and etiology of her headache condition, to include migraines.  The electronic claims file and a copy of this remand must be provided to the examiner and he or she must indicate review of these items in the examination report.

The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headache condition, to include migraines, is related to service.

The examiner must support each opinion with rationale.  In rendering the opinion, the examiner should address the Veteran's lay statements and the service treatment records showing past treatment for headaches.  If the examiner is unable to answer any question presented without resort to speculation, he or she should so indicate.

2.  Develop and adjudicate the issue of entitlement to a TDIU, to include providing the Veteran with the formal TDIU application form (VA Form 21-8940).

3.  Then, readjudicate the Veteran's claims on appeal.  If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case.

The Veteran 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. §§ 5109B, 7112 (2012).




______________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs