Citation Nr: 18155944 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 17-49 961 DATE: December 6, 2018 ORDER The issue of entitlement to an earlier effective date for the award of service connection for Achilles tendonitis of the left ankle and pes anserine bursitis of the right knee is dismissed. An initial rating higher than 10 percent prior to August 9, 2016 for Achilles tendonitis of the left ankle (left ankle disability) is denied. The issue of entitlement to an initial rating higher than 30 percent for the service-connected left ankle disability as of August 9, 2016 is dismissed. REMANDED Entitlement to an initial rating higher than 10 percent for pes anserine bursitis of the right knee (right knee disability) is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. There is no alleged error of fact or law regarding the effective date of January 16, 2007 for the award of service connection for the Veteran’s left ankle and right knee disabilities. 2. Prior to August 9, 2016, the Veteran’s left ankle disability was manifested by pain and moderate limitation of motion during flare-ups. 3. There is no alleged error of fact or law regarding the assignment of a 30 percent rating for the Veteran’s left ankle disability effective August 9, 2016. CONCLUSIONS OF LAW 1. The issue of entitlement to an earlier effective date for the award of service connection for the Veteran’s left ankle and right knee disabilities is dismissed. 38 U.S.C. § 7105 (2012). 2. The criteria for an initial rating higher than 10 percent prior to August 9, 2016 for the Veteran’s left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 3. The issue of entitlement to an initial rating higher than 30 percent for service-connected disability of the left ankle effective August 9, 2016 is dismissed. 38 U.S.C. § 7105 (2012).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to August 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his August 2016 notice of disagreement (NOD), the Veteran raised the issue of entitlement to a TDIU based on his service-connected left ankle and right knee disabilities. The Board has taken jurisdiction of that issue as a component of the increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Effective Date The Veteran appealed the effective date of service connection for his left ankle and right knee disabilities, as assigned in the March 2016 rating decision. He sought an effective date of January 16, 2007. See November 2018 Correspondence. That effective date has since been awarded for both disabilities, by rating decision dated in July 2018. Accordingly, the Veteran’s appeal has been granted in full. As there is no longer any allegation of error of fact or law regarding the effective dates of service connection, the appeal is dismissed. See 38 U.S.C. § 7105(d)(5). Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2017). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence supports a given evaluation under the applicable rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim, or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Left Ankle The Veteran's left ankle disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271. Diagnostic Code 5271 evaluates disability of the ankle based on limitation of motion. Under DC 5271, a 10 percent rating is assigned for moderate limitation of motion of the ankle. Id. A 20 percent rating is assigned for marked limitation of motion. Id. Normal range of motion of the ankle is defined as 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2017). These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The preponderance of the evidence shows that prior to August 9, 2016, the Veteran’s left ankle disability did not more nearly approximate the criteria for a rating higher than 10 percent under DC 5271. A December 2008 VA treatment record shows that the Veteran’s left ankle had no tenderness or erythema. Range of motion was normal. Strength was 5/5. The Achilles tendon was intact. The February 2009 VA examination report shows that on examination, left ankle dorsiflexion was from 0 to 15 degrees, and plantar flexion was from 0 to 35 degrees. There was no additional limitation of motion after repetitive use. There was some puffiness of the ankle, and tenderness over the distal Achilles tendon and over the peroneus tendons. Otherwise, there was no edema, instability, evidence of abnormal weightbearing, or tenderness to palpation. Private treatment records reflect that in January 2010, the Veteran reported ankle pain, which he rated as a 2 in severity in a pain scale of 1 to 5. He stated that he was taking prescription and over-the-counter medication, without much relief. An X-ray study of the ankle was ordered. The X-ray report showed that the osseous, articular, and soft tissue structures were unremarkable. There was no fracture or dislocation present. A February 2014 VA treatment record reflects the Veteran’s complaint of chronic left ankle pain, and his request for prescription medication to control the pain. On examination, the Veteran’s left ankle had good range of motion, and was without swelling or redness. The February 2016 VA examination report reflects that on examination, the Veteran had normal range of motion of the left ankle, with dorsiflexion from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. There was no additional loss with repeat testing. The examiner indicated that the Veteran’s ankle was being examined after repeated use over time. Regarding flare-ups, the Veteran stated that he experienced pain and swelling of the ankle and foot after walking for extended periods. The examiner found that pain, fatigue, and weakness significantly limited functional ability with flare-ups, and indicated that the additional functional loss would be manifested by range of dorsiflexion from 0 to 15 degrees, and plantar flexion from 0 to 35 degrees. In November 2018 correspondence, the Veteran, through his representative, stated that the February 2016 VA examination report was inadequate, as the examiner indicated that the claims file had not been reviewed, and “only provided an opinion regarding the current severity of [the Veteran’s] conditions.” The Board disagrees. There is no indication that review of the file would affect the examiner’s examination findings, including with respect to range of motion. Thus, there is no inadequacy on that basis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“[The Court has] not required VA medical examiners to perform a complete review of the entire claims file or state that they have done so in every instance”); Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997) (holding that review of claims file not required where it would not change the objective and dispositive findings made during a medical examination); Mariano v. Principi, 17 Vet. App. 305, 311-312 (2003) (observing that range of motion measurements are not conclusions drawn by a VA examiner that would be affected by review of the claims file, and therefore failure to review the Veteran’s claims file in conducting an orthopedic examination did not undermine the objective findings recorded by the VA examiner). Regarding the Veteran’s second reason for asserting that the examination report is inadequate, the examiner was not asked to provide a retrospective opinion regarding the severity of the Veteran’s left ankle disability prior to the date of the examination. The Board finds that the February 2009 VA examination report and the VA and private treatment records provide sufficient information on which to make an informed decision regarding the severity of the Veteran’s left ankle disability during the period under review. Accordingly, the fact that the examiner focused on the current severity of the Veteran’s left ankle disability, which was all that was required, did not render the examination report inadequate, and further examination or opinion is not warranted. The evidence discussed above shows that prior to August 9, 2016, the Veteran’s left ankle disability was manifested by moderate limitation of motion. The February 2009 VA examination report shows a 25 percent loss of dorsiflexion, and a 25 percent loss of plantar flexion, with no additional loss on repeat testing. The February 2016 VA examination report shows that range of motion of the left ankle was normal, including on repeat testing, but that the examiner estimated a 25 percent loss of dorsiflexion and plantar flexion during flare-ups (i.e. dorsiflexion to 15 degrees and plantar flexion to 35 degrees). The Board finds that a 25 percent loss in range of motion is consistent with moderate limitation of motion. The VA treatment records show that the Veteran’s range of motion of the left ankle has been characterized as normal or “good.” Accordingly, the evidence shows that prior to August 9, 2016 the Veteran’s left ankle has been manifested by no more than moderate limitation of motion, including during flare-ups or with repetitive use, due to pain, weakness, and fatigue. The Board notes that the Veteran increased symptoms only when walking for extended periods, and not as otherwise characteristic of his left ankle disability. A finding that prior to August 9, 2016, the Veteran’s left ankle disability more nearly approximated moderate limitation of motion, which is assigned a 10 percent rating, is in keeping with the fact that on examination his left ankle generally did not exhibit tenderness to palpation, redness, or swelling, and that the January 2010 X-ray report showed no osseous, articular, or soft tissue abnormalities. Regarding the Veteran’s complaints of chronic left ankle pain unrelieved by medication, and of swelling, the Board finds that these symptoms did not cause further functional impairment, but rather contributed to the limitation of motion based on which a 10 percent rating has been assigned, and thus have already been taken into account by way of that evaluation. The evidence does not show that the pain has been severe or more disabling than what might be contemplated by a 10 percent rating. For example, the January 2010 private treatment record reflects that the Veteran’s left ankle pain was described as 2 in a scale of 1 to 5, which indicates that it was mild in nature. Accordingly, the criteria for a rating higher than 10 percent under DC 5271 were not met or more nearly approximated prior to August 9, 2016. The evidence does not show that the Veteran’s left ankle was manifested by ankylosis or any other deformity or condition prior to August 9, 2016. Thus, a higher or separate rating under any other diagnostic code is not warranted. Because the preponderance of the evidence weighs against a higher rating, a rating higher than 10 percent prior to August 9, 2016 for the Veteran’s left ankle disability must be denied. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. Effective August 9, 2016, a 30 percent rating has been assigned based on a private examination report of that date, in which the examiner indicated that the Veteran had ankylosis of the ankle. See 38 C.F.R. § 4.71a, DC 5270. The Veteran has stated that his left ankle disability should be assigned a 30 percent rating based on that examination. See September 2017 and November 2018 Correspondence. Thus, the RO’s grant of a 30 percent rating effective August 9, 2016 resolves the Veteran’s appeal from that date forward. As there is no allegation of error of fact or law regarding the evaluation of the Veteran’s left ankle as of August 9, 2016, the issue of entitlement to a higher rating from that date forward is dismissed. See 38 U.S.C. § 7105(d)(5). REASONS FOR REMAND Right Knee A new VA examination is warranted that includes the testing required under 38 C.F.R. § 4.59 (2017). See Correia v. McDonald, 28 Vet. App. 158 (2016). TDIU The Veteran should be sent appropriate notice regarding the requirements for substantiating entitlement to a TDIU. He should also be furnished a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), with instructions to complete and return the form. The matter is REMANDED for the following action: 1. Send the Veteran appropriate section 5103(a) notice informing him of the requirements for substantiating entitlement to a TDIU, and VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), with instructions to fill out and return the form to VA. 2. Arrange for a VA examination of the Veteran’s right knee. All indicated tests and studies should be performed, and all pertinent clinical findings recorded. To the extent possible, the examiner should test for pain on both active and passive range-of-motion, in weightbearing and nonweight-bearing, and with comparison of the opposite knee, if it is undamaged. If the Veteran endorses flare-ups, the examiner should elicit as much information as possible from him regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide such an estimate, the examiner must explain why the available information, including the Veteran’s statements, is not sufficient for that purpose. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rutkin