Citation Nr: 18140417 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 15-32 332 DATE: October 3, 2018 ORDER Entitlement to an increased initial disability rating of 20 percent for left Achilles insertional calcification with Haglund’s (hereinafter “left ankle disability”) is granted. Entitlement to an increased initial rating of 20 percent (disregarding the period from May 9, 2014 to July 31, 2014, during which a temporary 100 percent rating was in effect) for right Achilles insertional calcification with Haglund’s (hereinafter “right ankle disability”) is granted. REMANDED Entitlement to an increased initial disability rating for an asthma condition, rated as noncompensable prior to April 9, 2015, and 30 percent thereafter, is remanded. Entitlement to an initial rating in excess of 20 percent for tendinosis of the rotator cuff, partial tear of the supraspinatus tendon, right shoulder (hereinafter “right shoulder disability”) is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving doubt in the Veteran’s favor, his left ankle disability has been manifested by marked limitation of motion. 2. Resolving doubt in the Veteran’s favor, his right ankle disability has been manifested by marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for an increased initial rating of 20 percent for the Veteran’s left ankle disability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), Diagnostic Code (DC) 5271 (2017). 2. The criteria for an increased initial rating of 20 percent for the Veteran’s right ankle disability (disregarding the period from May 9, 2014 to July 31, 2014, during which a temporary 100 percent rating was in effect) have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), DC 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1993 to July 1997 and from October 2012 to September 2013. In March 2017 and again in June 2018, the Agency of Original Jurisdiction (AOJ) issued rating decisions granting increased ratings for some of the disabilities on appeal, including assigning a temporary 100 percent rating following right ankle surgery. However, as these increases do not constitute a total grant of the benefits sought, the claims remain before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Increased initial ratings for bilateral ankle disabilities The Veteran is currently in receipt of separate 10 percent ratings for his bilateral ankle disabilities, pursuant to DC 5271. 38 C.F.R. § 4.71(a). For the following reasons, the Board finds that increased initial ratings of 20 percent are warranted. DC 5271 provides that a 10 percent rating is warranted for moderate limitation of motion of the ankle. A 20 percent rating is warranted for marked limitation of motion. Id. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. Id. at Plate II. The words “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.” See 38 C.F.R. § 4.6. Notably, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The Veteran underwent a VA examination in September 2014. At that time, he reported experiencing “constant pain” in the left and right heel areas, as well as flare-ups which rendered him unable to run or perform sports. Additional impairment factors noted by the examiner included excess fatigability and swelling. (The Board notes that the Veteran underwent right Achilles reconstructive surgery in May 2014. As noted above, a temporary 100 percent rating was assigned from May 9, 2014 to July 31, 2014.) The examiner noted that the Veteran required insoles for both ankles. No range of motion testing was performed. On VA examination in February 2017, the Veteran reported that his ankle symptoms had worsened since his previous examination. He stated that he needed to wear shoes with some sort of heel, because flat shoes caused him pain after 30 minutes. He reported constant pain in both heels, with flare-ups of intense pain on bad days. (Flare-ups of the right ankle, characterized as intense, burning pain, were noted to occur once a month, lasting a day-and-a-half.) The Veteran stated that he treated his symptoms with cold compresses, as well as with Motrin and Aleve. Range of motion testing revealed that dorsiflexion and plantar flexion in both ankles was limited to 20 degrees, with additional loss of motion due to pain, fatigue, weakness, lack of endurance, and incoordination. Additionally, the examiner noted that there was objective evidence of localized tenderness or pain on palpation of the joint. The examiner noted that ankle instability or dislocation was suspected in both ankles. However, there was no evidence of ankylosis in either ankle. After carefully reviewing the record, the Board finds that the Veteran’s bilateral ankle disabilities can fairly be said to have been productive of “marked” limitation of motion. As noted above, the VA examination reports of record reflect that the Veteran experiences constant pain, swelling, and instability in both ankles which collectively result in reduced range of motion, particularly during flare-ups, as well as functional limitations such as fatigue, weakness, and decreased endurance. Although the Veteran has been able to rotate and flex his ankles, he is unable to do so without experiencing pain and other symptoms described above. Such findings by VA medical professionals constitute limitation of motion that is severe enough to equate to “marked” limitation. Moreover, they are consistent with the Veteran’s credible reports of constant, aching pain in his ankles, accompanied by periodic flare-ups. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran’s 20 percent ratings under DC 5271 are the highest available ratings under that DC. The Board has considered other potentially applicable DCs; however, the Veteran’s bilateral ankle disabilities are not shown to involve any other factor or diagnosis that would warrant ratings in excess of 20 percent. The VA examination reports of record demonstrate that the Veteran has no history of ankylosis of the ankles (the only basis for a schedular rating in excess of 20 percent) or subastragalar or talar joints, malunion of the os calcis or astragalus, or astragalectomy. (Although bilateral shin splints were noted on the February 2017 examination report, they were observed to be asymptomatic.) None of the remaining evidence of record—including the Veteran’s lay statements—suggests that he has any of these diagnoses. Consequently, increased ratings under DCs 5270, 5272, 5273, or 5274 would not be appropriate. The Board has also considered the directives of Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), regarding the importance of ascertaining the specific functional impact of flare-ups. In this case, however, the Veteran’s most recent examination report included specific findings with respect to the severity, duration, and frequency of his flare-ups, and in any event there is no indication in the record that his flare-ups are severe enough to equate to joint locking or other symptoms equivalent to ankylosis. Neither the Veteran nor his representative have raised any other issues, nor have any other issues 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 record). In sum, the Board finds that the Veteran’s bilateral ankle impairment more nearly approximates “marked” limitation, and therefore increased initial ratings of 20 percent are warranted for each ankle. REASONS FOR REMAND Asthma The Veteran’s asthma is rated under DC 6602. Under that DC, a 10 percent rating is warranted for diminished lung function manifested by forced expiratory volume in one second (FEV-1) of 71 to 80 percent of the predicted value; or FEV-1/forced vital capacity (FVC) of 71 to 80 percent of the predicted value; or intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for FEV-1 of 56 to 70 percent of the predicted value; or FEV-1/FVC of 56 to 70 percent of the predicted value; or daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. Higher evaluations are warranted for more severely restricted lung function and/or increased need for ongoing treatments. See 38 C.F.R. § 4.97. The Veteran’s service treatment records reflect that he had periods of time when he was using daily inhalational therapy for his asthma. For example, in April 2013, the Veteran was prescribed Albuterol for exertional asthma, and was instructed to inhale two puffs 30 minutes prior to exercise. In August 2013, he reported that he was not on any specific medication but that he still experienced wheezing. At that time, the examiner stated that she did not believe the Veteran needed to be on medication; however, she noted that his history of respiratory tract infection triggering bronchospasm and cough seemed to be aggravated by intense exertion, and she recommended that his asthma be observed over time. The Veteran was afforded a VA respiratory examination in September 2014. The report reflects that the Veteran did not require the use of inhaled medications, oral bronchodilators, or other therapy for his asthma. The examiner did not discuss the Veteran’s history of asthma attacks. The report indicated that a pulmonary function study was performed, which showed “normal gas transfer” and no “acid-base disturbance and normal oxygenation”; however, the specific information required by 38 C.F.R. § 4.97 for evaluating lung function—FEV-1 or FVC results—was not included. No other respiratory examinations are of record. (The Veteran’s award of an increased 30 percent rating was effectuated when it was discovered that he had started using Albuterol for his asthma.) In summary, the Board finds that the September 2014 VA examiner’s findings are incomplete, as they do not include a meaningful discussion of the Veteran’s history of asthma symptoms, nor specific findings with respect to his lung function. Furthermore, the Veteran’s asthma appears to have worsened since the examination, as he has since been prescribed a more rigorous medication regimen. It is well-settled that, when the evidence of record “does not adequately reveal the current state of the claimant’s disability . . ., the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.” Caluza v. Brown, 7 Vet. App 498, 505-506 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). For the reasons discussed above, the Board finds that an updated VA examination is required to properly evaluate the Veteran’s asthma symptomatology. Right shoulder disability The Veteran last underwent a VA examination for his right shoulder disability in February 2017. On review, however, the examination did not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), which requires examiners to elicit information regarding the severity, frequency, and duration of flare-ups, including any functional impairment resulting therefrom. Specifically, although the Veteran reported flare-ups on overuse lasting for about 20 minutes at a time, the examiner did not attempt to provide an estimate regarding the degrees of range of motion loss during flare-ups, instead merely noting that flare-ups were not present during the examination. In light of the above, the Board finds that an updated VA examination is necessary. TDIU The Veteran now meets the schedular criteria for TDIU, pursuant to 38 C.F.R. § 4.16. Given the severity of his service-connected disabilities, and in light of his contention (as noted in his VA Form 9) that he is seeking the maximum benefit allowed by law and regulation, the Board finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). However, the Veteran has not been provided adequate notice of the requirements to substantiate TDIU, nor has the AOJ addressed this issue in the first instance. Hence, it must be remanded. The matters are REMANDED for the following action: 1. Obtain outstanding VA medical records pertaining to the Veteran, to include records dating from July 2017 to the present. 2. Schedule the Veteran for an examination of the current severity of his service-connected asthma, to include pulmonary function testing in accordance with the rating criteria provided in 38 C.F.R. § 4.97. 3. Schedule the Veteran for an examination of the current severity of his service-connected right shoulder disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In so doing, the examiner should specifically consider the Veteran’s lay statements regarding limitation of motion of his right shoulder. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. 4. Provide the Veteran with notice regarding the requirements to substantiate entitlement to a TDIU. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Minot, Associate Counsel