Citation Nr: 18150137 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-27 339 DATE: November 15, 2018 ORDER Entitlement to the assignment of an initial 10 percent disability rating prior to June 9, 2015 for a right ankle disability is granted. REMANDED Entitlement to service connection for a right hip condition is remanded. Entitlement to an initial disability rating excess of 30 percent for depression is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the appeal, the Veteran’s right ankle disability has been manifested by limited motion, with complaints of stiffness and painful motion, which more closely approximate moderate limitation of motion. CONCLUSION OF LAW Prior to June 9, 2015, the criteria for a 10 percent disability rating for right ankle sprain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5270. REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the Veteran’s appeal requested an “effective date” earlier than June 9, 2015 for an increased rating for the Veteran’s right ankle disability. The request for an earlier effective date for a rating increase essentially constitutes a request for a staged increased rating prior to the date of increase. She would not qualify for an earlier effective date for the grant of service connection as it was established as of the date of her claim. 38 C.F.R. § 3.400. Therefore, for clarity, the Board has recharacterized the Veteran’s appeal as a request for a compensable rating prior to June 9, 2015 rather than one for an earlier effective date. 1. Right Ankle Strain The Veteran contends that she is entitled to a 10 percent disability rating prior to June 9, 2015 for her right ankle sprain. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Although the evaluation of a service-connected disability requires a review of a Veteran’s medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings. Fenderson v. West, 12 Vet. App. 119 (1999). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran’s right ankle disability is currently rated as noncompensable under DC 5271. That code addresses limited motion of the ankle, providing a 10 percent rating for moderate limitation of motion, and a 20 percent rating for marked limitation of motion. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The evidence of record includes the Veteran initial treatment for a right ankle sprain after falling down a stair in December 2003. The Veteran underwent a VA examination in June 2013. The Veteran stated she had had persistent stiffness in the right ankle since her initial injury. Range of motion testing showed plantar flexion limited to 35 degrees and dorsiflexion to 15 degrees, without objective evidence of painful motion. The examiner described the Veteran’s functional impairment as less movement than normal. An x-ray report showed mild asymmetry at the ankle mortise and posttraumatic ossification adjacent to the distal medial malleolus, findings compatible with prior ligamentous injury. The examiner indicated the Veteran’s right ankle impacts her ability to work as she can only walk for 100 yards at a time before stopping ot rest, she can only climb one flight of stairs at a time, and she can only stand for 30 minutes at a time. In private treatment records dated February to June 2014, the Veteran reported some pain in the medial aspect of her ankle. She also reported her ankle feels like it is burning at times. Upon physical examination, there was no significant swelling, but she described tenderness to palpation both anteriorly and laterally. A June 2014 note indicated an MRI showed very mild peroneal tendonitis. After consideration of all of the evidence of record, including the medical evidence and the lay evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s right ankle symptomatology more closely approximates the criteria for a 10 percent evaluation prior to June 9, 2015. Here, the evidence reveals that the Veteran has some decreased range of motion in her right ankle according to the June 2013 VA examination. Additionally, the Veteran has reported painful motion of her right ankle and the private treatment records showed tenderness to palpation. Because the Veteran has not had signs or symptoms that would be tantamount to “marked” limitation of motion of the right ankle throughout the appeal period, the Board finds the level of functional impairment more nearly approximates a level of impairment consistent with moderate limitation of motion. Taking into consideration the provisions of 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59 and DeLuca, supra, such clinical evidence of painful motion, tenderness, and stiffness warrants a finding of moderate impairment throughout the appeal period. See 38 C.F.R. § 4.71a, DC 5271. The Board finds, therefore, that a rating in excess of 10 percent is not warranted for the demonstrated functional impairment in the right ankle pursuant to Diagnostic Code 5271, as well as 38 C.F.R. §§ 4.40, 4.45 and 4.59. Additionally, as the record evidence is not clinically characteristic of ankylosis, malunion of os calcis or astragalus, or astragalectomy, as shown by VA examination in June 2013, a higher rating under 38 C.F.R. § 4.71a, DC 5270, 5272, 5273, or 5274 is not warranted. REASONS FOR REMAND 1. Right Hip The Veteran asserts service-connected is warranted for a right hip disorder, as secondary to her service-connected right ankle disability. The Veteran underwent a VA examination in November 2015. The examiner opined the Veteran’s right hip disorder was not secondary to her service-connected right ankle disability, but was incurred after a car accident in August 2015. The Veteran submitted an undated statement from Dr. C. indicating that it is as likely as not that the Veteran’s service-connected right ankle condition contributes to or aggravates her right hip condition. As the VA examiner failed to discusss whether the right ankle disability aggravates the right hip disability, and Dr. C. failed to provide a rationale for her opinion, the Board finds an additional VA examination is necessary. 2. Depressive Disorder Private psychiatric treatment records indicate the service-connected depressive disorder has increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of her service-connected depressive disorder. 3. TDIU Finally, the Board finds that a claim for TDIU was raised in a January 2016 notice of disagreement as part and parcel of the claim for an increased rating for depressive disorder. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the claim for TDIU is inextricably intertwined with the aforementioned claim, it must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to obtain evidence as to the nature and etiology of any diagnosed right hip disorder. The examiner must opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by a service-connected right ankle disability. Please discuss why you say so. 2. Contact Dr. C. and ask the physician to supplement the opinion provided. Ask Dr. C. to provide a rationale as to why the Veteran’s right hip disability is aggravated by the right ankle disability. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected 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. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to her service-connected depressive disorder alone. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel