Citation Nr: 18144139 Decision Date: 10/25/18 Archive Date: 10/23/18 DOCKET NO. 16-24 406 DATE: October 25, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected arthritis of the left ankle prior to April 17, 2014, is denied. Entitlement to an initial disability rating of 20 percent for service-connected arthritis of the left ankle from April 17, 2014, is granted. REMANDED Entitlement to service connection for migraine headaches is remanded. FINDING OF FACT Prior to April 17, 2014, the Veteran’s service-connected arthritis of the left ankle resulted in no more than moderate limitation of motion. Resolving reasonable doubt in the Veteran’s favor, his service-connected arthritis of the left ankle has resulted in marked limitation of motion from April 17, 2014. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for service-connected arthritis of the left ankle prior to April 17, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5271. The evidence being in equipoise, the criteria for an initial disability rating of 20 percent for service-connected arthritis of the left ankle have been met from April 17, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1975 to December 1978. This case is on appeal before the Board of Veterans’ Appeals (Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2018, the Veteran filed a Notice of Disagreement (NOD) with a May 2017 rating decision that denied service connection for migraine headaches. Typically, when there has been an initial RO adjudication of a claim and an NOD has been filed as to its determination, the veteran is entitled to a statement of the case (SOC). The RO’s failure to issue an SOC is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). The RO did not acknowledge the Veteran’s January 2018 NOD regarding the issue of entitlement to service connection for migraine headaches. The NOD was timely. The Board finds that the RO’s failure to acknowledge the NOD and the failure to issue an SOC as to this issue is a procedural defect. Thus, the Board is taking jurisdiction of the issue of entitlement to service connection for migraine headaches for the limited purpose of remanding it for the issuance of an SOC. Id. The title page of this decision has been updated accordingly. The issue of entitlement to service connection for migraine headaches is addressed in the REASONS FOR REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). The VA will notify the Veteran if further action is required. Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the 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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran alleges that his service-connected arthritis of the left ankle warrants an initial increased disability rating throughout the entire appeal period, which began on March 5, 2010, the date service connection was established. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. 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 arthritis of the left ankle is currently rated under Diagnostic Code 5003-5271, which provides the ratings criteria for degenerative arthritis and limitation of motion of the ankle. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional one to identify the basis for the rating assigned; the additional diagnostic code is shown after the hyphen. Id. Under Diagnostic Code 5271, a 10 percent disability rating is warranted for moderate limitation of motion of the ankle. A 20 percent disability rating is assigned when there is marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Codes 5271. Pursuant to VA regulations, normal range of motion for ankle dorsiflexion is 0 to 20 degrees, and normal range of motion for plantar flexion is 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. Also, use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 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 applied for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1) (2017). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that, due to his service-connected arthritis of the left ankle, he has lost two-thirds of his plantar flexion ability. This, he asserts, entitles him to at least a 20 percent disability rating under Diagnostic Code 5271. See March 2018 representative brief. During an appointment in March 2014, the Veteran reported pain in his lateral left foot when not using his boot, which he described as moderate. The Veteran was afforded a VA examination for his left ankle condition on April 17, 2014. The examiner conducted an in-person examination of the Veteran and reviewed the claims file, noting the previous diagnosis of degenerative arthritis. The Veteran complained of poor range of motion in the left ankle and chronic pain with loss of feeling along the lateral foot. He stated that injections have dulled the pain but his symptoms returned. The Veteran also indicated that his ankle condition will cause him to walk with an abnormal gait during flare-ups. Upon examination, left ankle plantar flexion was 15 degrees and left ankle dorsiflexion was 15 degrees. The examiner noted that the left ankle exhibited swelling, pain on movement and palpation, interference with weightbearing, and less movement than normal. There was no evidence of ankylosis, but the Veteran uses a brace and walking boot. An X-ray showed no acute fracture or dislocation. However, a large ossific fragment posterior to the ankle was visible, which may represent an atypical ossification versus old trauma. Otherwise, only mild degenerative changes at the talonavicular joint and a minimal plantar heel spur were present. The examiner opined that these findings were similar to those shown in a 2009 MRI, concluding that the Veteran’s left ankle condition would prevent him from jumping, climbing, squatting, and standing or walking for prolonged periods. In June 2016, the Veteran presented for left foot pain. The attending physician reviewed an MRI from of the Veteran’s left ankle from 2009, which revealed remote fractures versus ossification variants involving the posterior surface of the talus. A larger osseous fragment was seen on the medial aspect of the posterior ankle, along with tibiotalar and posterior subtalar degenerative changes. There were also remote avulsion injuries involving both medial and lateral malleoli. Upon examination, there was moderate pain with medial to lateral compression of left rearfoot and pain at medial calcaneal tubercle. The Veteran underwent a second VA examination in November 2017. The examiner conducted an in-person examination of the Veteran and reviewed the claims file, noting the previous diagnosis of left ankle arthritis. The Veteran reported flare-ups and “locking up,” which happen approximately two to five times per week and last several hours. The Veteran also indicated difficulty climbing and walking during flare-ups, pain interfering with sleep, and difficulty jumping, running, and walking on even terrain. Additionally, the Veteran stated that he has to stop walking after approximately 100 yards and has difficulty with prolonged driving. Upon examination, plantar flexion was limited to 15 degrees while dorsiflexion was left ankle limited to 10 degrees. The examiner also found that functional loss results in impaired gait, along with evidence of crepitus, pain in weightbearing, and localized tenderness. The examiner opined that repeated use over time may be significantly limited by pain, weakness, fatiguability, or incoordination. Although there was no reduction of muscle strength or ankylosis, joint instability or dislocation was suspected. The examiner noted that the Veteran regularly uses a brace, and concluded that his left ankle arthritis impairs his ability to walk or stand for prolonged periods of time and walk over uneven terrain. After careful consideration of the claims file, the Board finds that the preponderance of the evidence is against the finding that the Veteran’s service-arthritis of the left ankle manifested to a degree consistent with a disability rating in excess of 10 percent under Diagnostic Code 5271 prior to April 17, 2014. Indeed, prior to this date, the evidence in the claims file relating to treatment for left ankle arthritis is quite minimal. While there are numerous complaints of foot pain, such as the appointment in March 2014, it is unclear from the treatment notes whether the symptoms described are attributable to the Veteran’s left ankle arthritis or his other service-connected left foot condition. Additionally, there is no range of motion testing on record for the Veteran’s left ankle prior to April 17, 2014, which is essential to assess limitation of motion under Diagnostic Code 5271. However, the findings reflected in the VA examination on April 17, 2014, support the application of a 20 percent disability rating from that date. Although the Veteran’s left ankle dorsiflexion was only slightly limited, his plantar flexion was reduced by two-thirds. The examiner also noted that the Veteran’s left ankle exhibited swelling, pain on movement and palpation, and interference with weightbearing, along with the Veteran’s use of a brace and walking boot. The November 2017 examiner recorded similar findings, further opining that repeated use of the left ankle over time may be significantly limited by pain, weakness, fatiguability, or incoordination. This evidence stands in contrast to the available medical imaging, which suggests that the Veteran’s left ankle arthritis has not significantly worsened since 2009. Nonetheless, the Board finds the evidence of record is in equipoise for the period beginning on April 17, 2014, and concludes that the Veteran’s service-connected arthritis of the left ankle results in marked limitation of motion from that date. Because the Veteran is in receipt of a disability rating based on actual limitation of motion under Diagnostic Code 5271, a separate evaluation for painful motion under Diagnostic Code 5003 is not warranted. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Burton v. Shinseki, 25 Vet. App. 1 (2011). Furthermore, the Board notes that the Veteran is separately service-connected for his neuropathy of the left foot and therefore will not address that issue. Thus, the Board finds that the weight of the evidence is against the finding of an initial disability rating in excess of 10 percent for the Veteran’s service-connected arthritis of the left ankle for the period prior to April 17, 2014. To the extent any higher level of compensation is sought prior to April 17, 2014, the preponderance of the evidence is against this claim. Hence the benefit of the doubt rule does not apply prior to April 17, 2014. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. However, the evidence is in equipoise regarding the application of a 20 percent disability rating under Diagnostic Code 5271 from April 17, 2014. Accordingly, the claim is granted from that date. REASONS FOR REMAND Although further delay is regrettable, the Board finds that additional development is required prior to adjudication of the remaining issue on appeal. The Board has taken jurisdiction over the issue of entitlement to service connection for migraine headaches for the limited purpose of ordering corrective action pursuant to 38 C.F.R. § 19.9(c) (2017) (codifying Manlincon, 12 Vet. App. 238). In that regard, the Veteran filed a timely NOD in January 2018 relating to the May 2017 rating decision denying service connection for migraine headaches. The RO has not yet issued an SOC or acknowledged the Veteran’s disagreement with that decision. As a result, a remand of the issue of entitlement to service connection for migraine headaches is required for the issuance of an SOC. Manlincon, at 239-41. The Veteran will then have the opportunity to perfect an appeal as to this issue if he so chooses. The matter is REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to service connection for migraine headaches. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. After completing the above, and any other development deemed necessary, adjudicate the appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel