Citation Nr: 18142714 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-38 412 DATE: October 16, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for a left ankle disability prior to March 18, 2015, is denied. Entitlement to an increased 20 percent rating for a left ankle disability effective from March 18, 2015, is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a total disability rating based upon individual unemployability as a result of service-connected disability (TDIU) from May 8, 2012, is granted. REMANDED Entitlement to a rating in excess of 10 percent for a right shoulder disability is remanded. Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to a rating in excess of 10 percent for a cervical spine disability is remanded. Entitlement to a rating in excess of 10 percent for bilateral pes planus is remanded. Entitlement to a rating in excess of 50 percent for major depressive disability is remanded. FINDINGS OF FACT 1. The persuasive evidence demonstrates that prior to March 18, 2015, the Veteran’s left ankle disability was manifested by no more than moderate limited ankle motion. 2. The evidence demonstrates that effective from March 18, 2015, the Veteran’s left ankle disability is manifested by a marked limited ankle motion. 3. The Veteran’s service-connected disabilities are shown to have rendered him unable to secure and follow a substantially gainful occupation since May 8, 2012. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a left ankle disability prior to March 18, 2015, have not been met. 38 U.S.C. § 1155 (2012), 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5271 (2018). 2. The criteria for an increased 20 percent rating for a left ankle disability effective from March 18, 2015, have been met. 38 U.S.C. § 1155 (2012), 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5271 (2018). 3. The criteria for a TDIU effective from May 8, 2012, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1993 to June 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2017, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This 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 percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2018). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2018). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2018). 1. Entitlement to an initial rating in excess of 10 percent for a left ankle disability. The Veteran contends that his service-connected left ankle disorder is more severely disabling than reflected by the present 10 percent rating. VA records show that service connection was established for degenerative joint disease to the right acromioclavicular joint and left ankle with an assigned 10 percent rating in a July 2006 rating decision. A separate 10 percent rating was assigned for the left ankle disability in April 2012. VA examination in March 2012 included a diagnosis of left ankle strain. At the time, the Veteran complained of pain on prolonged standing and walking. No flare-ups of symptoms were reported. Left ankle plantar flexion was to 45 degrees or greater with no objective evidence of painful motion. Dorsiflexion was to 20 degrees or greater with objective evidence of painful motion at 15 degrees. Motion was unchanged after repetitive-use testing. There was functional loss with less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, disturbances of locomotion, and interference with sitting, standing, and weight-bearing. There was localized tenderness or pain on palpation. Muscle strength was normal, 5/5, to left ankle plantar flexion, but was 4/5, active movement against some resistance to dorsiflexion. Anterior drawer and talar tilt testing was negative. There was no evidence of ankylosis and the examiner found the left ankle disorder did not impact his ability to work. VA examination in September 2012 included a diagnosis of left ankle degenerative joint disease. It was noted the Veteran reported his ankle was painful, stiff, and gave way. No flare-ups of symptoms were reported. Left ankle plantar flexion was to 45 degrees or greater and dorsiflexion was to 20 degrees or greater. There was no objective evidence of painful motion to plantar flexion or dorsiflexion. Passive range of motion was unchanged from active range of motion on repetitive motion testing. There was no evidence of functional loss or additional function impairment. There was no localized tenderness or pain on palpation. Muscle strength was 5/5, normal, to plantar flexion and dorsiflexion. Anterior drawer and talar tilt testing was negative. There was no evidence of ankylosis and the left ankle disorder did not impact the Veteran’s ability to work. Private treatment records include a March 18, 2015, magnetic resonance imaging (MRI) study noting an incomplete fracture of the posterior talar process with marrow edema, degenerative change to the posterior facet subtalar joint, an eight-millimeter longitudinal split peroneus brevis at the fibula with tenosynovitis of the peroneal tendons, diffuse ligament thickening and scarring compatible with nonacute trauma, and reactive subchondral traction cysts on both sides of the tarsal sinus. VA examination in September 2015 included a diagnosis of degenerative arthritis of the left ankle. The Veteran complained of chronic ankle pain and weakness especially with weight-bearing, walking and standing, and climbing stairs. He stated he was not able to do heavy lifting or carrying and that his ankle might give out. No flare-ups of symptoms were reported. Left ankle motion was abnormal with dorsiflexion from 0 to 15 degrees and plantar flexion from 0 to 40 degrees. There was evidence of pain with weight-bearing, objective evidence of localized tenderness or pain on palpation, and objective evidence of crepitus. There was no evidence of additional loss of range of motion or functional loss after repetitive-use testing. Muscle strength was 5/5, normal, to plantar flexion and dorsiflexion. There was no evidence of muscle atrophy. Left ankle instability or dislocation was suspected, but anterior drawer and talar tilt testing was negative. No assistive devices were used and the examiner found the ankle disorder did not impact the Veteran’s ability to perform any type of occupational task. Traumatic arthritis is rated pursuant to the criteria found in Diagnostic Code 5010, which directs that evaluations are to be made pursuant to the criteria for degenerative arthritis found in Diagnostic Code 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1) (2018). Orthopedic disabilities of the ankle joint are evaluated under the criteria of 38 C.F.R. § 4.71a (2018). Normal range of motion for the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5271 a 10 percent evaluation is provided for moderate limited motion of the ankle and a 20 percent evaluation for marked limited motion of the ankle. The Rating Schedule does not define the terms moderate or marked, and VA must evaluate all of the evidence to arrive at decisions that are equitable and just. 38 C.F.R. § 4.6 (2018). VA rating policies provide that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2018). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (2018). Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2018). Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. An adequate orthopedic examination should record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. Correia v. McDonald, 28 Vet. App. 158 (2016). Based upon the evidence of record, the Board finds that the Veteran’s service-connected left ankle disability prior to March 18, 2015, was manifested by no more than a moderate limitation of ankle motion. VA examinations in March 2012 and September 2012 revealed normal or near normal left ankle plantar flexion and dorsiflexion. Upon examination in September 2012 there was no objective evidence of painful motion to plantar flexion or dorsiflexion and passive range of motion was unchanged from active range of motion on repetitive motion testing. There was also no evidence of functional loss or additional function impairment, no localized tenderness or pain on palpation, muscle strength was normal, and there was no objective evidence of instability. Therefore, the claim for entitlement to a rating in excess of 10 percent prior to March 18, 2015, must be denied. The Board acknowledges that the Veteran is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by VA medical professionals who have examined him. The medical findings adequately address the criteria under which the disability is evaluated and clearly demonstrate that the Veteran’s left ankle disability has been no more than moderate over the course of the appeal. The Board accords these objective records greater weight than the Veteran’s subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds, however, that the evidence includes a March 18, 2015, MRI study indicative of an increased left ankle disability. The September 2015 VA examination revealed no more that moderate limitation of motion. However, the MRI findings are consistent with the Veteran’s reported symptoms of a more severe disability and limitation of motion due to pain and dysfunction. Therefore, an increased 20 percent rating is warranted effective from March 18, 2015. 2. Entitlement to a TDIU. A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a) (2018). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a) (2018). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2018). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran contends that he is unemployable due to his service-connected disabilities. In his May 2012 TDIU application he reported he had completed high school and that he last worked on May 1, 2012. He reported having lost 30 days of employment due to illness from September 2011 to May 2012, 10 days from February 2009 to December 2010, and 40 days from August 2006 to January 2009. His former employer reported that he had resigned from his employment as a structural mechanic and had last worked on May 8, 2012. In statements and testimony in support of his claim he asserted that his orthopedic disabilities precluded employment requiring manual labor and that his depression precluded most types of sedentary work. VA records show service connection, prior w to this decision, was established for major depressive disorder (50 percent), sleep apnea (50 percent), degenerative joint disease and strain of the right shoulder (10 percent), degenerative disc disease and scoliosis of the thoracolumbar spine (10 percent), degenerative disc disease and spondylosis of the cervical spine (10 percent), degenerative joint disease of the left ankle (10 percent), bilateral pes planus (10 percent), status post bunionectomy of the right foot (10 percent), status post fracture of the right fifth metacarpal (0 percent), and status post bunionectomy of the left foot (0 percent). A combined 90 percent rating has been in effected since July 23, 2011. The Veteran is shown to have met the schedular criteria for a TDIU effective from the date of receipt of his claims on July 23, 2011. See 38 C.F.R. § 4.16(a). The Board finds the evidence is persuasive that the Veteran is not capable of substantially gainful employment due to his service-connected disabilities. Records show he last worked om May 8, 2012, and that he was gainfully employed during the appeal period prior to this date. Overall, the available medical opinions demonstrate that his service-connected disabilities preclude gainful employment. Entitlement to a TDIU effective from May 8, 2012, is granted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a right shoulder disability is remanded. 2. Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. 3. Entitlement to a rating in excess of 10 percent for a cervical spine disability is remanded. 4. Entitlement to an initial rating in excess of 10 percent for a left ankle disability is remanded. 5. Entitlement to a rating in excess of 10 percent for bilateral pes planus is remanded. 6. Entitlement to a rating in excess of 50 percent for major depressive disability is remanded. The Veteran contends that his service-connected mental disorder, right shoulder disorder, lumbar spine disorder, cervical spine disorder, and pes planus are more severely disabling than reflected by the presently assigned ratings. VA examinations for these disabilities in March 2012 and September 2012. In correspondence dated in December 2014 the Veteran reported that his service-connected disabilities had gotten worse. He provided copies of private treatment records suggestive that there has been a change/worsening of symptomatology. However, the records are not adequate for VA rating purposes. Additional examinations are required for adequate determinations Notwithstanding the foregoing, an August 2017 private medical report found the Veteran had a severe mental disorder, but noted that his diagnosis of major depressive disorder had been changed to bipolar II disorder. No indication for the basis of the changed diagnosis was provided and no comments were provided as to the service-connected major depressive disorder. The examiner also stated that the Veteran had been unemployable for 10 years as a result of his psychiatric disorder symptoms; however, no comments were provided as to the evidence demonstrating he had worked until May 2012. Clarification is needed. It was further noted that he had received treatment since August 2011. The reports of that treatment are not included in the available record and could assist the Veteran in substantiating his remaining claims. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Emanuel Martinez, M.D. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected major depressive disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms, and must address the August 2017 private examiner’s opinion. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. 3. Schedule the Veteran for an examination of the current severity of his right shoulder, lumbar spine, and cervical spine disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to these disabilities alone and discuss the effect on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected pes planus. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to this disability alone and discuss the effect on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel