Citation Nr: 18153075 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 11-06 900 DATE: November 27, 2018 ORDER Entitlement to an initial disability rating of 20 percent, prior to October 23, 2017, and 10 percent, but no higher, thereafter for service-connected degenerative arthritis, left ankle is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating of 20 percent, prior to October 23, 2017, and 10 percent, but no higher, thereafter for service-connected degenerative arthritis, right ankle is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating of 60 percent for service-connected esophageal diverticulectomy with gastroesophageal reflux disease (GERD) and fundoplication with diverticulitis (esophageal condition) is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to initial disability rating in excess of 10 percent for service-connected bilateral plantar fasciitis is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the initial period on appeal the Veteran’s left ankle disability manifested with marked limitation of motion with dorsiflexion limited to 10 degrees and flare-ups that have caused falls and impede physical activity. 2. For the period beginning October 23, 2017 the Veteran’s left ankle disability manifested by pain but normal range of motion. 3. For the initial period on appeal the Veteran’s right ankle disability manifested with marked limitation of motion with dorsiflexion limited to 10 degrees and flare ups that have caused falls and impede physical activity. 4. For the period beginning October 23, 2017 the Veteran’s right ankle disability manifested by pain but normal range of motion. 5. For the initial period on appeal the Veteran’s esophageal condition manifested with symptoms productive of severe impairment of health to include dysphagia, persistently recurrent epigastric distress, pyrosis, regurgitation, gastrointestinal bleeding, and substernal and abdominal pain. CONCLUSIONS OF LAW 1. For the initial period on appeal the criteria for a disability rating of 20 percent for Veteran’s left ankle disability is met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Codes (DC) 5271. 2. For the period beginning October 23, 2017 the criteria for a disability rating in excess of 10 percent for the Veteran’s left ankle disability is not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.71a, DC 5271. 3. For the initial period on appeal the criteria for a disability rating of 20 percent for Veteran’s right ankle disability is met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.71a, DC 5271. 4. For the period beginning October 23, 2017 the criteria for a disability rating in excess of 10 percent for the Veteran’s right ankle disability is not met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.71a, DC 5271. 5. For the initial period on appeal the criteria for a disability rating of 60 percent for the Veteran’s esophageal condition is met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, DC 7399-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to April 2009 in the United States Marine Corps. Increased Rating Disability ratings are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995), Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 1. Entitlement to an initial disability rating of 20 percent for service-connected degenerative arthritis, left ankle is granted. The Veteran’s left ankle disability is rated under DC 5271. Under DC 5271 a 10 percent disability rating is warranted for a moderate limited motion of the ankle. A 20 percent disability rating is warranted for a marked limited motion of the ankle; 20 percent is the maximum rating under DC 5271. A schedular rating in excess of 20 percent is only available where ankylosis is shown. 38 C.F.R. § 4.17a, DC 5270 Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. The Veteran’s left ankle disability is currently rated 10 percent disabling for the entire period on appeal. The Board finds that the Veteran is entitled to a 20 percent disability rating prior to October 23, 2017, and 10 percent thereafter. August and November 2008 private treatment records include radiograph results showing degenerative changes of the ankles with instability. The Veteran underwent a VA examination in March 2009. The examination results indicate that the Veteran had a history of “sprains” to the ankle and that his ankles easily roll, give out, and are fatigued. The Veteran underwent a VA examination in February 2016. The Veteran reported flare-ups of the ankle which can cause falls with physical activity outdoors. The objective range of motion testing revealed abnormal left ankle range of motion limited to 10 degrees dorsiflexion and 35 degrees plantar flexion. Pain was noted on the examination and was the cause of functional loss of range of motion. The examiner also identified evidence of pain with weight bearing. Joint instability was noted. The Veteran underwent a left ankle surgical procedure in March 2017. The Veteran then had an additional VA examination in October 2017. The examiner indicated that the Veteran did not report experiencing flare-ups of left ankle symptoms and did not report functional loss or functional impairment of the left ankle. Objective range of motion testing revealed normal dorsiflexion and plantar flexion with full range of motion. There was no pain noted on examination and no pain with weight bearing. The Veteran’s left ankle symptoms did cause disturbance of locomotion, interference with standing, and required regular use of a brace, however there was no instability noted. The Board finds that, affording the Veteran the benefit of the doubt, his left ankle disability most closely approximates the criteria for a 20 percent disability prior to October 23, 2017 and 10 percent thereafter. The evidence of record indicates left ankle degenerative changes with instability and giving out for the entire period on appeal. The March 2009 VA examination did not include objective range of motion testing. However, the Veteran’s February 2016 VA examination does include such testing, indicating that the Veteran’s dorsiflexion was limited to half of the full range and plantar flexion with loss of 10 degrees of motion. This examination also demonstrated that painful ankle motion and pain on weightbearing were both present and contributed to functional loss and impairment. However, following the Veteran’s left ankle surgery in March 2017 the October 2017 VA examination objective range of motion testing indicated that the Veteran’s left ankle had full range of motion with no pain. The Veteran’s regular use of an ankle brace continued and there was some disturbance of locomotion and interference with standing. The Board finds that the painful and limited range of motion, flare-ups and instability and regular use of a brace documented in February 2016 VA examination, support a conclusion that his service-connected left ankle disability manifests as a marked disability for the initial period on appeal. Specifically, the Veteran’s March 2009 VA examination was not a full orthopedic examination of the Veteran’s left ankle and therefore, resolving reasonable doubt in his favor, the Board finds that his left ankle manifested as a marked disability for the initial period on appeal. The October 2017 VA examination, however, indicates that the Veteran’s left ankle symptoms resolved substantially following his surgery. Specifically, range of motion was full and no pain was noted. Because the Veteran did continue to experience impediments to locomotion and standing, as well as continued regular use of a brace, the Board finds that his left ankle disability manifested as moderate for the period beginning with the October 2017 VA examination. 2. Entitlement to an initial disability rating of 20 percent for service-connected degenerative arthritis, right ankle is granted. The Veteran’s right ankle disability is currently rated 10 percent disabling under DC 5271 for the entire period on appeal. The Board finds that the Veteran is entitled to a 20 percent disability rating prior to October 23, 2017, and 10 percent thereafter. August and November 2008 private treatment records include radiograph results showing degenerative changes of the ankles with instability, more evident in the right ankle. The Veteran underwent a VA examination in March 2009. The examination results indicate that the Veteran had a history of “sprains” to the right ankle and that his ankles easily roll, give out, and are fatigued. The Veteran underwent a VA examination in February 2016. The Veteran reported flare-ups of the right ankle which can cause falls with physical activity outdoors. The objective range of motion testing revealed abnormal right ankle range of motion limited to 10 degrees dorsiflexion and 35 degrees plantar flexion. Pain was noted on the examination and was the cause of functional loss of range of motion. The examiner also identified evidence of pain with weight bearing. Joint instability was noted. The Veteran underwent a right ankle surgery in August 2017, the same as the March 2017 surgery on his left ankle. The Veteran then had an additional VA examination in October 2017. The examiner indicated that the Veteran did not report experiencing flare-ups of right ankle symptoms and did not report functional loss or functional impairment of the right ankle. Objective range of motion testing revealed normal dorsiflexion and plantar flexion with full range of motion. There was no pain noted on examination and no pain with weight bearing. The Veteran’s right ankle symptoms did cause disturbance of locomotion, interference with standing, and required regular use of a brace, however there was no instability noted. The Board finds that, affording the Veteran the benefit of the doubt, his right ankle disability most closely approximates a 20 percent disability prior to October 23, 2017 and 10 percent thereafter. The evidence of record indicates right ankle degenerative changes with instability and giving out for the entire period on appeal. The March 2009 VA examination did not include objective range of motion testing. However, the Veteran’s February 2016 VA examination does include such testing, indicating that the Veteran’s dorsiflexion was limited to half of the full range and plantar flexion with loss of 10 degrees of motion. This examination also demonstrated that painful ankle motion and pain on weightbearing were both present and contributed to functional loss and impairment. However, following the Veteran’s left ankle surgery in March 2017 the October 2017 VA examination objective range of motion testing indicated that the Veteran’s left ankle had full range of motion with no pain. The Veteran’s regular use of an ankle brace continued and there was some disturbance of locomotion and interference with standing. The Board finds that the painful and limited range of motion, flare-ups and instability and regular use of a brace documented in February 2016 VA examination, support a conclusion that his service-connected left ankle disability manifests as a marked disability for the initial period on appeal. Specifically, the Veteran’s March 2009 VA examination was not a full orthopedic examination of the Veteran’s left ankle and therefore, resolving reasonable doubt in his favor, the Board finds that his left ankle manifested as a marked disability for the initial period on appeal. The October 2017 VA examination, however, indicates that the Veteran’s left ankle symptoms resolved substantially following his surgery. Specifically, range of motion was full and no pain was noted. Because the Veteran did continue to experience impediments to locomotion and standing, as well as continued regular use of a brace, the Board finds that his left ankle disability manifested as moderate for the period beginning with the October 2017 VA examination. 3. Entitlement to an initial disability rating of 60 percent for service-connected esophageal diverticulectomy with GERD and fundoplication with diverticulitis is granted. This particular disease is not explicitly comprehended by the DCs; therefore, it has been rated analogous to disabilities encompassing the anatomical location and symptoms. 38 C.F.R. § 4.27. The Veteran’s esophageal condition is rated as analogous to hiatal hernia. Under DC 7346, a 10 percent evaluation is assigned where there are two or more of the symptoms of a 30 percent evaluation with less severity. A 30 percent rating is assigned with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The Veteran’s disability is currently rated in stages, with the initial period rated 30 percent, prior to February 22, 2016 and 60 percent thereafter. 60 percent represents the maximum disability rating under DC 7346. The Veteran underwent a VA examination in March 2009. The examiner noted that the Veteran experienced symptoms of regurgitation, including partially digested food, and reflux. Unintentional weight-loss was also indicated with the Veteran losing 10 pounds over the previous three months. November 2009 private treatment records indicate that the Veteran was experiencing gastroesophageal symptoms such as weight loss, difficulty swallowing, heartburn/reflux, nausea/vomiting, indigestion, belching, abdominal pain, gastrointestinal bleeding, and bowel issues. A private November 2009 examination revealed dysphagia, abdominal pain, and weight loss. March 2010 private treatment records demonstrate that the Veteran experiences dysphagia. In October 2012 private medical treatment records indicate that the Veteran had severe heartburn, choking, burping, and belching symptoms described as consistent with the symptoms he experienced prior to his in-service surgery. These symptoms woke the Veteran at night with a “sour taste” in his throat. The Veteran denied experiencing any lower dysphagia but did endorse mild mid chest dysphagia. December 2012 private medical records indicate that the Veteran presented with symptoms of dysphagia and reflux, describing feelings of as if his food were stuck. A high-resolution esophageal manometry also conducted in December 2012 includes a description of the esophageal body as “very bizarre” and further stating that “this is a quite abnormal motility study and would indicate to [the private physician] that [the Veteran] does suffer from an either mechanical blockage such that he has no ability to peristalses or has undergone enough trauma and/or damage to the esophagus such that it is no longer functional in the distal aspect.” In February 2013 the Veteran underwent a private esophagal surgical procedure. The physician who conducted the procedure stated that since this operation the Veteran has experienced “significant difficulty with his digestive system.” Although the physician indicated that the Veteran’s reflux and regurgitation “continued to resolve” the Veteran also experienced satiety and a loss of 23 pounds over three months. Private treatment records from February 2015 through February 2016 indicate that the Veteran presented with problems such as globus sensation, dysphagia, and esophageal dysphagia. The Veteran’s chief complaint was a follow-up for esophageal dysphagia and globus sensation. In February 2016 the Veteran underwent a VA examination for esophagal conditions. The Veteran was noted to have symptom combinations productive of severe impairment of health, including dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbances caused by pain that manifest four or more times per year. The VA examiner characterized the Veteran’s esophagal condition as “severe” and “recurrent and persistent.” The functional impact of the condition requires the Veteran to pay for assistance in his business, an inability to eat for 24 hours prior to flying, and anxiety. The Board finds that the Veteran is entitled to a disability rating of 60 percent, the maximum under DC 7346, for the entire period on appeal for his service-connected esophageal condition. The Veteran’s increase to 60 percent disabling was based on findings from the February 2016 VA examination. That examiner characterized the condition as severe impairment of health due to the Veteran’s recurrent and persistent symptoms which were primarily identified as dysphagia, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbances. Affording the Veteran the benefit of the doubt the competent evidence of record prior to this VA examination more closely approximates the 60 percent rating criteria. Specifically, the evidence documents ongoing symptoms of reflux, regurgitation, dysphagia as noted on the February 2016 VA examination. The evidence also demonstrates symptoms of abnormal motility, globus sensation, abdominal pain, gastrointestinal bleeding, vomiting, belching, and periods of significant weight-loss. Private physicians treating the Veteran’s gastrointestinal/esophageal symptoms during this period characterized the condition as “bizarre,” noted “abnormal motility” through diagnostic procedures, and remarked that there is “significant difficulty with [the Veteran’s] digestive system.” The primary difference in the severity of the symptoms prior to, and following, the February 2016 VA examination appears to be the examiner’s characterization of the level of impairment the combination of those symptoms has on the Veteran’s health. Furthermore, the only other VA examination of record took place in March 2009 and that examiner made no specific judgement as to whether the symptoms combined to produce a “considerable” or “severe” health impairment. The initial disability rating of 30 percent was assigned based on the symptoms noted in the evidence. Given that the majority of symptoms present on the February 2016 VA examination were also present during the initial period on appeal, the Veteran had additional symptoms during that time, and the significance of his condition was noted by multiple private physicians, the Board finds that the Veteran’s esophageal condition warrants a 60 percent rating for the initial period on appeal. This represents the maximum rating under DC 7346. REASONS FOR REMAND 1. Entitlement to initial disability rating in excess of 10 percent for service-connected bilateral plantar fasciitis is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of increased rating for service-connected bilateral plantar fasciitis. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to TDIU is remanded. The Veteran raised the issue of entitlement to a TDIU in a June 2017 statement. The AOJ should develop the issue. The TDIU claim is inextricably intertwined with the increased rating claim being remanded. The matter is REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form, with all appropriate information. Thereafter, take all appropriate action on the TDIU claim, to include any necessary examinations. 2. After completion of the foregoing, the Veteran should be scheduled for a VA examination by an appropriate examiner to determine the current severity of the bilateral plantar fasciitis. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The examiner should be directed to perform range of motion testing to determine the extent of limitation of motion due to pain on active motion and passive motion, and with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. (Continued on the next page)   The examiner must specify all symptoms of the feet that are present and the result of the service-connected bilateral plantar fasciitis disability. The examiner must also specify all symptoms of the feet that are present and the result of bilateral calcaneal spurs and/or bilateral degenerative joint disease of the first metatarsophalangeal joint. The examiner should also address the March 2017 bilateral foot surgery and noted bilateral pes cavus. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod