Citation Nr: 18153132 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 17-05 789 DATE: November 27, 2018 ORDER Entitlement to an initial 10 percent rating, but no higher, for residuals of a left ankle fracture is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran’s service-connected residuals of a left ankle fracture are manifested by painful motion, but are not manifested by marked limitation of motion. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no higher, for residuals of a left ankle fracture are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.59, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1985 to August 1989 and from October 2004 to December 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an initial 10 percent rating, but no higher, for residuals of a left ankle fracture A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). 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). The Veteran contends that he is entitled to an initial compensable rating for his left ankle disability, which is rated under Diagnostic Code 5271. Diagnostic Code 5271 provides a 10 percent evaluation for “moderate” limitation of motion of the ankle and a 20 percent evaluation for “marked” limitation of motion of the ankle. Normal ranges of motion of the ankle are as follows: Dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The terms “moderate” and “marked” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). When assigning a disability rating, some of the regulations preceding the rating schedule add flexibility to the listed Diagnostic Codes. 38 C.F.R. § 4.59 is one such regulation. In Petitti v. McDonald, 27 Vet. App. 415, 424 (2015), the Court noted that § 4.59 “explain[s] how to arrive at proper evaluations under the DCs appearing in the disability rating schedule.” The provisions of § 4.59 acknowledge that a claimant’s disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Diagnostic Code. Accordingly, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the Diagnostic Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). While § 4.59 adds flexibility to the rating schedule, it is also limited by the terms of the appropriate Diagnostic Code for the joint. Thus, if the appropriate Diagnostic Code for the joint does not provide a compensable rating, a claimant is not entitled to a minimum rating. Id. at 481 (“Section 4.59 may intend to compensate painful motion, but it does not guarantee a compensable rating”). Sowers highlights the importance of the Diagnostic Code under which the Veteran is rated because § 4.59 operates within the parameters of the Diagnostic Code. Where the record contains evidence of an actually painful, unstable, or malaligned joint or periarticular region, § 4.59 is potentially applicable. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). The Veteran was afforded a VA examination in October 2014. The Veteran reported that he experiences left ankle discomfort and instability and uses a brace when it is cold and/or rainy. He also reported he has pain with prolonged walking, standing and when using stairs. The Veteran did not report flare-ups and range of motion was normal and there was no pain on weightbearing noted. The examiner stated that the Veteran’s left ankle condition affects his ability to work as he reports pain with prolonged standing, walking, and use of stairs. The Veteran also reported missing 3 days of work due to ankle pain. VA treatment records from March 2015 indicate that the Veteran experienced on and off pain and swelling in his left ankle. The Veteran reported prolonged standing, getting up from sitting, excessive walking and walking up and down stairs increases his pain. He also reported that he is unable to run. See January 2016 CAPRI pg. 21. As the Veteran has exhibited painful motion of the left ankle, he is entitled to a 10 percent rating under 5271. See 38 C.F.R. § 4.59; Sowers, 27 Vet. App. 472 (2016). The Veteran is not entitled a rating greater than 10 percent as there is no contention or medical evidence showing ankylosis, “marked” limitation of motion, malunion of the os calcis or astragalus, or astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274. To warrant a higher evaluation, there must be the functional equivalent of “marked” limitation of motion. The Board is sympathetic to the Veteran’s report of ankle pain; however, the Board finds that a 10 percent evaluation contemplates the Veteran’s pain and difficulty with walking and standing consistent with 38 C.F.R. § 4.59 and DeLuca. As such, the Board finds that the Veteran is entitled to an initial 10 percent rating, but no higher, for residuals of a left ankle fracture. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss and tinnitus is remanded. The Veteran was afforded a VA audiological examination in October 2014. The examiner diagnosed the Veteran with bilateral hearing loss and tinnitus. The examiner opined that it is less likely than not that the Veteran’s bilateral hearing loss is caused by or the result of military service. The examiner also opined that the Veteran’s tinnitus is at least as likely as not a symptom associated with hearing loss but that it is less likely than not that it is caused by or the result of military noise exposure. The examiner stated that the Veteran served on active duty from October 2004 to December 2005 and the only audiometric data available is from February 2011, 6 years after active service. The examiner stated that the Veteran had several years of post-service occupational noise exposure and it is not possible to determine the extent, if any, to which his current hearing loss is attributable to military noise exposure without access to hearing testing done prior to October 2004 or shortly after December 2005. The Board finds the VA examiner’s opinion inadequate as the examiner failed to consider the April 2003 audiological examination contained in the claims file. Further, the examiner failed to address to the Veteran’s earlier period of active service from September 1985 to August 1989 and the audiological examinations from that period, which show a threshold shift from September 1985 to November 1988. See May 1997 STR pg. 16. As the examiner failed to address the Veteran’s earlier period of active duty and consider all audiological examination in the record, the Board finds that this appeal must be remanded to obtain an adequate medical opinion to determine the etiology of the Veteran’s hearing loss and tinnitus. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran underwent a sleep study and was diagnosed with sleep apnea in September 2013. See October 2014 CAPRI. The Veteran contends that his sleep apnea is related to his service. Although service treatment records are absent of any complaints or treatment for a sleep disorder, the Veteran submitted a buddy statement in August 2015 that states the Veteran did not snore or have sleep problems until he was stationed in Iraq in 2004 and 2005. See October 2015 STR. In light of the Veteran’s diagnosis, his contentions that his sleep apnea is related to service, and the August 2015 buddy statement indicating his sleep apnea symptoms began in service, the Board finds that a VA examination is necessary before the claim may be adjudicated. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Obtain an opinion from a qualified clinician to determine the etiology of the Veteran’s bilateral hearing loss and tinnitus. If, and only if, determined necessary by the clinician, the Veteran should be scheduled for another VA examination. The clinician should review the Veteran’s claims file provide the following opinions: Whether it is at least as likely as not (50 percent greater probability) that the Veteran’s hearing loss was caused by or aggravated by his military service. Whether it is at least as likely as not (50 percent greater probability) that the Veteran’s tinnitus had its onset in or is otherwise etiologically related to the Veteran’s active service. The clinician should consider the audiological testing showing a threshold shift from September 1985 to November 1988. See May 1997 STR pg. 16. The clinician should also consider the April 2003 audiogram. See August 2011 STR pg. 10. 2. Schedule the Veteran for an examination to determine the nature and etiology of his sleep apnea. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should provide the following opinions: Whether it is at least as likely as not (50 percent greater probability) that the Veteran’s sleep apnea was caused by or aggravated by his military service. The examiner is asked to discuss the August 2015 correspondence which stated that the Veteran’s snoring and sleep problems began while he was deployed in Iraq in 2004-2005. 3. After the above development has been completed, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Brandt