Citation Nr: 18142530 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-21 403 DATE: October 16, 2018 ORDER Entitlement to a 20 percent rating, but no higher, for residuals of fracture of the left ankle with traumatic arthritis is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for degenerative disc disease of the lumbar spine, claimed as secondary to service-connected residuals of fracture of the left ankle with traumatic arthritis is remanded. Entitlement to service connection for degenerative joint disease of the left knee, claimed as secondary to service-connected residuals of fracture of the left ankle with traumatic arthritis is remanded. Entitlement to service connection for degenerative joint disease of the right knee, claimed as secondary to service-connected residuals of fracture of the left ankle with traumatic arthritis is remanded. Entitlement to service connection for degenerative joint disease of the right ankle, claimed as secondary to service-connected residuals of fracture of the left ankle with traumatic arthritis is remanded. Entitlement to service connection for degenerative joint disease of the right foot, claimed as secondary to service-connected residuals of fracture of the left ankle with traumatic arthritis is remanded. FINDING OF FACT The evidence is at least evenly balanced as the whether the Veteran’s symptoms of residuals of fracture of the left ankle with traumatic arthritis have more nearly approximated marked limitation of motion. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for a 20 percent rating for residuals of fracture of the left ankle with traumatic arthritis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1985 to September 1989. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Left Ankle Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Veteran’s service-connected left ankle disability has been rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Limitation of motion of the ankle is evaluated under Diagnostic Code 5271. Under that code, a 10 percent rating is assigned for moderate limitation of motion of the ankle. A maximum 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of motion of the ankle is dorsiflexion from zero to 20 degrees and plantar flexion from zero to 45 degrees. 8 C.F.R. § 4.71a, Plate II. While the Rating Schedule does not specify what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in VBA’s M21-1 Adjudication Procedures Manual. Specifically, the M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. The Adjudication Manual is not binding on the Board, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), but provides useful guidance. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. The Veteran seeks a higher rating for his service-connected left ankle disability. He contends that the rating currently assigned does not reflect the severity of his disability. In a January 2011 statement, the Veteran’s wife reported that some mornings he cannot even walk. She noted that the Veteran’s left ankle swells for no reason. In support of his claim, the Veteran was afforded a VA medical examination in January 2013. He reported that his left ankle symptoms included “lock up” and pain. The Veteran reported treatment by injections with short lived pain relief. He also noted that he took Naproxen and Tramadol for pain with some relief. The Veteran reported left ankle flare-ups of pain that causes him to shift the burden to his right ankle. The Veteran’s left ankle range of motion was at 10 degrees of dorsiflexion with pain and 15 degrees of plantar flexion with pain. He was able to perform repetitive use testing without additional limitation of motion. There was functional loss exhibited by less movement than normal, weakness, pain, and interference with sitting, standing and weight-bearing. There was localized tenderness or pain on palpation. The Veteran’s left ankle strength was 4/5 in plantar flexion and dorsiflexion. The left ankle x-ray noted degenerative or traumatic arthritis. There was no evidence of ankylosis. The Veteran used a brace constantly. The examiner noted that his left ankle disability impacted his ability to work, in that he would not recommend employment of a significant physical nature (construction work), however, the Veteran is able to do sedentary work, or work of a light physical nature. In a May 2013 statement, the Veteran reported that his left ankle had gotten worse and continues to worsen. He asserted that he could hardly walk on his left ankle without pain every day. In April 2016, the Veteran underwent a VA medical examination. The Veteran reported that his chronic left ankle pain gets worse with prolonged walking, standing, and stair climbing. The Veteran denied flare-ups. The Veteran’s left ankle range of motion was at 10 degrees of dorsiflexion with pain and 35 degrees of plantar flexion with pain. There was no additional loss of function or range of motion upon repetitive-use testing. There was evidence of pain on weight-bearing. There was no evidence of pain, weakness, fatigability or incoordination. There was localized tenderness or pain on palpation of joint, and objective evidence of crepitus. The Veteran’s muscle strength was noted as normal. The left ankle x-ray noted degenerative or traumatic arthritis. There was no evidence of ankylosis, os calcis, astragalus, or astragalectomy. The Veteran constantly used a brace and cane. The examiner noted that the functional impact on the Veteran’s ability to work was prolonged walking and standing. In this case, the evidence of record is evenly balanced as to whether the Veteran’s left ankle disability more nearly approximate marked limitation of motion under Diagnostic Code 5271. Throughout the pendency of the appeal, the Veteran has consistently complained of pain and demonstrated other symptoms that limits motion of his left ankle during flare-ups. The Veteran has exhibited left ankle motion to, at worst, dorsiflexion to 10 degrees and plantar flexion to 15 degrees. Moreover, VA examiners have not estimated the ranges of motion due to functional loss during flare-ups of the Veteran’s left ankle disability. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that a 20 percent rating under DC 5271 for the left ankle disability is warranted for the entire period on appeal. A 20 percent rating is the maximum schedular evaluation under DC 5271. If a veteran is receiving the maximum disability rating allowable for a particular disorder, the Board does not have to consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, in Johnston, the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. See id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). The Board has considered whether other diagnostic codes could warrant a higher rating at any point throughout the appeal period. However, the Veteran did not manifest malunion of the os calcis or astragalus, or consolidation of ankle and/or subastragalar or tarsal joint. Therefore, the evidence of record does not support a basis for evaluating the service-connected left ankle disability by analogy under Diagnostic Codes 5283 or 5273. In addition, because the Veteran’s VA medical examinations have not demonstrated evidence of ankylosis, Diagnostic Codes 5270 and 5272 pertaining to ankylosis are not for application. Furthermore, the Veteran has not undergone an astragalectomy and, hence, the criteria of Diagnostic Code 5274 are not applicable. The Veteran also has arthritis of the left ankle. However, to grant a separate rating for arthritis would amount to compensating twice for manifestations of the same disability under different diagnoses, in violation of the rule against pyramiding under 38 C.F.R. § 4.14. The Board has considered the Veteran’s increased rating claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. 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 claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Lumbar Spine The Veteran contends that his lumbar spine disability is secondary to his service-connected residuals of fracture of the left ankle with traumatic arthritis. The Veteran underwent a VA medical examination in January 2013. The examiner opined that it is less likely as not that the Veteran’s lower back condition is secondary to his service-connected residuals of left ankle with traumatic arthritis. The examiner concluded that it is more likely that obesity and age-related changes have been the major contributors to his low back pain from degenerative joint disease and degenerative disc disease. The examiner, however, failed to provide a clear opinion with rationale addressing whether the Veteran’s lumbar spine disability is aggravated by his service-connected left ankle disability. 38 C.F.R. § 3.310(b); El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In light of the above, the Board finds the examiner’s opinion is inadequate and another VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). 2. Left Knee/Right Knee The Veteran contends that his left and right knee disabilities are secondary to his service-connected residuals of fracture of the left ankle with traumatic arthritis. The Veteran underwent a VA medical examination in January 2013. The examiner opined that it is less likely as not that the Veteran’s degenerative joint disease of the left and right knee is secondary to his service-connected residuals of left ankle with traumatic arthritis. The examiner reasoned that it is more likely that the Veteran’s bilateral knee arthritis is related to obesity and age-related changes. The examiner failed to provide a clear opinion with rationale addressing whether the Veteran’s left and right knee disabilities are aggravated by his service-connected left ankle disability. 38 C.F.R. § 3.310(b); El-Amin v. Shinseki, supra. In light of the above, the Board finds the examiner’s opinion is inadequate and another VA medical opinion is required. Barr, 21 Vet. App. at 312 (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). 3. Right Ankle The Veteran contends that his right ankle disability is secondary to his service-connected residuals of fracture of the left ankle with traumatic arthritis. The Veteran underwent a VA medical examination in January 2013. The examiner opined that it is less likely as not that the Veteran’s right ankle condition is secondary to his service-connected residuals of left ankle with traumatic arthritis. The examiner reasoned that it is more likely that the Veteran’s right ankle pain is related to obesity, deconditioning, and age-related changes. The examiner failed to provide a clear opinion with rationale addressing whether the Veteran’s right ankle disability is aggravated by his service-connected left ankle disability. 38 C.F.R. § 3.310(b); El-Amin v. Shinseki, supra. In light of the above, the Board finds the examiner’s opinion is inadequate and another VA medical opinion is required. Barr, 21 Vet. App. at 312 (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). 4. Right Foot The Veteran contends that his right foot disability is secondary to his service-connected residuals of fracture of the left ankle with traumatic arthritis. The Veteran underwent a VA medical examination in January 2013. The examiner opined that it is less likely as not that the Veteran’s right foot condition is secondary to his service-connected residuals of left ankle with traumatic arthritis. The examiner noted that it is more likely that the Veteran’s degenerative joint disease of the foot is related to obesity and age-related changes. The examiner, however, failed to provide a clear opinion with rationale addressing whether the Veteran’s right foot disability is aggravated by his service-connected left ankle disability. 38 C.F.R. § 3.310(b); El-Amin v. Shinseki, supra. In light of the above, the Board finds the examiner’s opinion is inadequate and another VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. at 312 (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Request an opinion from an appropriate specialist physician to determine the nature and etiology of the Veteran’s lumbar spine disability. The physician should review the claims file prior to rendering the opinion. The physician should answer the following questions: (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s lumbar spine disability was either (i) caused or (ii) aggravated by his service-connected left ankle disability? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible. A complete rationale should accompany any opinion provided. 2. Request an opinion from an appropriate specialist physician to determine the nature and etiology of the Veteran’s left and right knee disabilities. The physician should review the claims file prior to rendering the opinion. The physician should answer the following questions: (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left and right knee disabilities were either (i) caused or (ii) aggravated by his service-connected left ankle disability? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible. A complete rationale should accompany any opinion provided. 3. Request an opinion from an appropriate specialist physician to determine the nature and etiology of the Veteran’s right ankle disability. The physician should review the claims file prior to rendering the opinion. The physician should answer the following questions: (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right ankle disability has been either (i) caused or (ii) aggravated by his service-connected left ankle disability? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible. A complete rationale should accompany any opinion provided. 4. Request an opinion from an appropriate specialist physician to determine the nature and etiology of the Veteran’s right foot disability. The physician should review the claims file prior to rendering the opinion. The physician should answer the following questions: (a.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right foot disability has been either (i) caused or (ii) aggravated by his service-connected left ankle disability? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible.   A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel