Citation Nr: 18156799 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 17-07 610 DATE: December 11, 2018 ORDER A rating in excess of 10 percent for right ankle sprain and dislocation, status post surgery with scar is denied. REMANDED Entitlement to service connection for lumbosacral strain claimed as low back pain, to include as secondary to service-connected right ankle sprain and dislocation status post surgery, is remanded. Entitlement to service connection for a sinus condition is remanded. FINDINGS OF FACT 1. The Veteran’s right ankle sprain and dislocation status post surgery with scar has been manifested by pain, swelling, discoloration, slight limitation of motion, and pain on motion, which together does not approximate marked limitation of ankle motion, even considering flare-ups and the effects of pain. 2. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran’s right ankle disability resulted in a disability level and symptomatology not contemplated by the rating schedule. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for right ankle sprain and dislocation, status post surgery with scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 2000 to August 2009. This matter is before the Board of Veteran’s Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 10 percent for right ankle sprain and dislocation status post surgery with scar. The Veteran contends he should be granted a rating in excess of 10 percent for his service-connected right ankle disability. He claims his right ankle disability results in functional limitations that are marked and seeks an increase. Through his attorney he asserts that he should be awarded a higher rating for his service-connected disability pursuant to DeLuca v. Brown. Finally, he also contends that if the record is insufficient to award a higher rating based on DeLuca, then the Board should find that the November 2014 and May 2016 VA examinations are inadequate and a new VA examination which properly addresses the functional loss or impairment due to pain and flare-ups be provided. For the reasons set forth below the Board finds that the November 2014 and May 2016 VA examinations are adequate for rating purposes and that the weight of the evidence supports a finding that the symptoms associated with the Veteran’s right ankle disability more nearly approximate a moderate limitation and not a marked limitation. The record shows the Veteran’s service-connected right ankle disability has been assigned a 10 percent rating pursuant to DC 5271, which provides a 10 percent disability rating for moderate limitation of motion. A 20 percent rating contemplates marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Marked and moderate are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence in formulating decisions that are equitable and just. 38 C.F.R. § 4.6. Normal ranges of motion for the ankle are 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. A careful review of the record reflects that in a September 2014 VA treatment record, it was documented that during a pain evaluation, the Veteran indicated he was experiencing a pain level of six on a scale of one through ten, from back and ankle pain. The pain was described as soreness and throbbing with an onset of greater than one year. The Veteran indicated that the pain was intermittent and interfered with sleep and physical activity. Interventions included positioning, heat, non-opioid over the counter medications. An in-person VA ankle examination was conducted in November 2014. The VA examiner diagnosed the Veteran’s disability as right ankle condition. The examiner noted that because of two in-service injuries, the Veteran required surgical reconstruction of ligament and tendon tears of the lateral right ankle. After recovery from surgery, he returned to active duty until he separated from service. Relevant to flare-ups, the Veteran reported significant increase of pain, swelling and discoloration from increased ambulation and prolonged walking and standing. He indicated that a flare-up occurred after one to two weeks of increased activity and resolved after one day of reduced activity. He denied any functional loss or impairment as a result of his right ankle disability. The Veteran’s initial range of motion of his ankles bilaterally was normal. He was able to perform repetitive use testing with at least three repetitions without any additional loss of function or range of motion. There was no reduction of muscle strength, no muscle atrophy and no joint instability noted in either ankle. The report was silent regarding ankylosis. The Veteran reported he occasionally wore a brace on his right ankle. The examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time, nor did it impact his ability to perform any type of occupational task. The VA examiner indicated that based on the clinical presentation, the examination findings and the Veteran’s reports, he could not provide an opinion without speculation as to what additional loss of range of motion in degrees the Veteran’s right ankle disability would cause during repeated use over time or flare ups, because there was insufficient medical evidence upon which to base that opinion. During a May 2016 VA examination, the Veteran reported that he could stand for more than two hours with pain and swelling in his right ankle and could not walk for more than one hour before needing to sit due to pain. Range of motion testing revealed 10 degrees of dorsiflexion and 30 degrees of plantar flexion. The examiner indicated that pain did not cause or result in functional loss. Muscle strength of the right ankle showed normal strength. There was no muscle atrophy, no evidence of pain on weight-bearing, and no ankylosis. The Veteran was able to perform at least three repetitions of range of ankle motion, with no additional loss of function or range of motion. It was noted that he was being examined immediately after repetitive use over time, but the examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The May 2016 VA examiner also indicated that there was insufficient medical evidence to base an opinion about additional loss of range of motion in degrees during flare-ups. Based on the foregoing, the Board finds that the evidence does not support an evaluation in excess of 10 percent. At its worst, there was right ankle dorsiflexion to 10 out of 20 degrees and plantar flexion to 30 out of 45 degrees. This more closely approximates mild to at most, moderate, rather than marked, limitation of motion. This is true particularly when considering any additional functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.49; DeLuca v. Brown, 8 Vet. App. 202 (1995). At each examination during the appeal period, there was no additional limitation of motion upon repetitive use. To the extent there was interference with walking and standing for prolonged periods, as well as pain on movement, the Board finds that this is approximate to moderate limitation of motion without additional compensable functional loss, particularly since repetitive use did not cause additional limitation of motion. The Board also notes that the record is silent for any right ankle treatment to address pain or loss of range of motion during the pendency of this appeal. Accordingly, the record suggests that any functional loss because of flare-ups of the Veteran’s right ankle is minimal. After reviewing the record, the Board concludes that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the Veteran’s service-connected right ankle disability under DC 5271. Moreover, a rating in excess of 10 percent is also not warranted under other applicable diagnostic codes, as the record shows there is no ankylosis, no malunion of the ankle, no impairment of the tibia or fibula, and no astragalectomy. 38 C.F.R. § 4.71a, DCs 5262, 5270, 5272, 5273, 5274. The Veteran’s attorney has also argued that the Veteran’s right ankle disability warrants extraschedular consideration. See May 2017 Third Party Correspondence. Accordingly, the Board has considered whether referral for extraschedular consideration is warranted for the service-connected right ankle disability for any part of the rating period on appeal. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Director, Compensation Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The U.S. Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Director of Compensation Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Id. at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. Turning to the first step of the Thun extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran’s right ankle disability is fully contemplated by the schedular rating criteria. The Veteran’s attorney does not contend that the Veteran’s right ankle disability is not contemplated by the schedular rating criteria because it presents a unique disability picture. Rather she argues that the definitions of the rating criteria, “moderate” and “marked” are vague and lack guidance. See May 2017 Correspondence. The Board has carefully considered the Veteran’s lay statements regarding his right ankle disability. Specifically, he indicated that he experiences ankle pain due to weather changes, which occurs a couple of times a week when the weather is cold. He also stated that when he is walking around on construction sites for more than a few hours, he begins to limp. As a result, he does not walk around for more than three to four hours at a time. On long work days he must ice his ankle at home. See Statement in Support of Claim, February 2017. The Veteran’s spouse also submitted a statement confirming that the Veteran continues to have right ankle pain especially during use and cold weather months, as well as decreased mobility. He uses ibuprofen for pain. See Statement in Support of Claim, February 2017. The Board notes that decreased mobility and limping are specifically contemplated by the rating schedule which, with regard to functional loss states “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.” 38 C.F.R. § 4.40. Regarding joints, the regulatory provision states that inquiry will be directed to these considerations: “pain on movement, swelling, deformity, or atrophy of disuse”. 38 C.F.R. § 4.45(f). This regulatory provision applies to the schedular rating criteria including all ankle joint diagnostic codes. See Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (finding that pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to the schedular rating criteria). Likewise, to the extent that there is evidence of loss of range of motion of the Veteran’s right ankle, the schedular rating criteria provide for limitation of motion due to pain, and DCs 5270, 5271, 5272, 5273, and 5274 specifically provide for disability ratings based on limitation of motion, including as due to pain, lack of endurance, weakness, fatigability, and other limiting orthopedic factors. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; see also Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995) (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain). Therefore, the Board cannot find that the first element of Thun has been satisfied, and the preponderance of the evidence is against a referral for extraschedular consideration. In summary, the preponderance of the evidence reflects that the Veteran’s service-connected right ankle disability has been no more than 10 percent disabling. Thus, the benefit-of-the-doubt rule does not apply, and his claim for a rating in excess of 10 percent must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for lumbosacral strain claimed as low back pain, to include as secondary to his service-connected right ankle sprain and dislocation status post surgery, is remanded. The Veteran contends that his lumbosacral strain claimed as low back pain started during military training in 2005. He also asserts that his low back pain is further aggravated by his service-connected right ankle sprain and dislocation status post surgery. The Veteran was afforded a VA examination for his low back pain in December 2016. The Veteran through his attorney, requested a new VA examination claiming that the December 2016 VA examiner failed to discuss a medical provider’s statement that the Veteran’s back pain began during military training in 2005 as well as the Veteran’s lay statements. After careful review the Board finds that the December 2016 VA examination is inadequate in that the examiner’s opinion addressed the proximate and aggravation prongs of the Veteran’s secondary service connection claim, but did not address direct causation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In this regard, the record reflects that the Veteran served under circumstances that exposed him to repeated rocket, mortar and small arms fire. See, e.g., August 2016 VA examination report. The VA examiner did not properly assess whether the Veteran’s back disability is consistent with the nature and the conditions of such service. Accordingly, remand is warranted for further records development and a new VA examination. 2. Entitlement to service connection for a sinus condition is remanded. The Veteran contends that his sinus condition occurred and was aggravated by his active duty service. He seeks service connection. The Veteran was afforded a VA examination for his sinus condition in December 2016. The examiner noted that the Veteran had permanent hypertrophy and nasal polyps and diagnosed him with allergic rhinitis. The examiner opined that the condition would not be due to any specific exposure or event experienced by the Veteran in Southwest Asia. The Veteran through his attorney requested a new VA examination for several reasons. The Veteran’s attorney claimed that the December 2016 VA examiner failed to articulate an adequate rationale for his opinion. The examiner also failed to address a treatise article submitted by the Veteran in October 2016 documenting that deployed Veterans were at an increased risk for sinusitis compared to non-deployed Veterans. Finally, the VA examiner failed to discuss the Veteran’s medical history which showed he was previously diagnosed with chronic sinusitis. The Board finds that the December 2016 VA examination is inadequate because the VA examiner’s service connection opinion is limited only to the Veteran’s deployment to the Persian Gulf. The Board notes that in addition to deployment to Southwest Asia, the Veteran was also deployed to Afghanistan. A February 2015 post-deployment health form indicates that the Veteran was exposed to sand, dust, open air burn pits which contained human waste, and other airborne environmental hazards. The Veteran had 5 years of other active duty service. Accordingly, remand for an opinion regarding direct service connection which represents all time frames of the Veteran’s active duty service and discusses the nexus if any between the environmental exposures which occurred and the Veteran’s current sinus condition is warranted. The matters are REMANDED for the following actions: 1. With the Veteran’s assistance, obtain all relevant and outstanding VA and private medical records and associate them with the claims file. 2. After the above records development, schedule the Veteran for a VA examination to determine the nature and etiology of his low back pain, to include as secondary to service-connected right ankle sprain and dislocation status post surgery. The Veteran’s claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination. Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide an opinion responding to the following: (a.) With respect to the Veteran’s period of active duty service which also includes deployments to both Iraq and Afghanistan, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s low back pain is etiologically related to his active service. (b.) Is at least as likely as not (50 percent probability or greater) that the Veteran’s low back pain was caused by his service-connected right ankle sprain and dislocation status post surgery (c.) Is at least as likely as not (50 percent probability or greater) that the Veteran’s low back pain was aggravated (that is, beyond its natural progression) by his service-connected right ankle sprain and dislocation status post surgery. 3. After the above records development, schedule the Veteran for a VA examination to determine the nature and etiology of his sinus disability. The Veteran’s claims file (to include this decision) must be reviewed by the examiner in conjunction with the examination. Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should delineate all diagnoses of record and then provide an opinion responding to the following: (a.) With respect to the Veteran’s period of active duty service, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sinus disability is etiologically related to his active service, to specifically include environmental exposures as delineated on the February 2015 post deployment health form. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Alexander, Associate Counsel