Citation Nr: 18156844 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-46 328 DATE: December 11, 2018 ORDER An initial rating of 20 percent is assigned for the right ankle disability for the entire period on appeal. An initial rating of 20 percent is assigned for the left ankle disability for the entire period on appeal. REMANDED Entitlement to an initial rating higher than 40 percent for the service-connected lumbar disability is remanded. Entitlement to a rating higher than 20 percent for the service-connected right ankle disability is remanded. Entitlement to a rating higher than 20 percent for the service-connected left ankle disability is remanded. FINDINGS OF FACT 1. The Veteran’s right ankle disability is characterized by pain and limitation of motion that more nearly approximates marked limitation of motion. 2. The Veteran’s left ankle disability is characterized by pain and limitation of motion that more nearly approximates marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating for the right ankle disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Code 5271 (2017). 2. The criteria for an initial 20 percent rating for the left ankle disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1995 to August 2006. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As a procedural matter, the Veteran submitted several statements during the pendency of this appeal that requested to be rated as 100 percent disabled and “employable” due to his service-connected posttraumatic stress disorder and his low back disability because he wanted to continue working. See November 2014 and September 2016 statements. The RO construed the Veteran’s statements as a claim for a total disability rating due to individual unemployability (TDIU) and issued a March 2018 rating decision denying TDIU, primarily because the Veteran had full-time employment. The Veteran’s representative submitted an April 2018 VA 646 that addressed the increased rating claims for the back and the bilateral ankle disabilities. Subsequently, the Veteran’s representative submitted a separate June 2018 VA 646 addressing solely the TDIU claim, which specifically requested a Board hearing. Thus, the Board will address the issue of entitlement to a TDIU in a separate decision after the Veteran has been afforded a Board hearing. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011). Inasmuch as the Board is remanding a portion of this appeal, the issue of entitlement to a TDIU is REFERRED to the RO for the scheduling of a Board hearing per the June 2018 appellate brief. The Veteran did not request a hearing before the Board at any time during the appellate period for the increased rating claims for the back or bilateral ankle disabilities. See September 2016 VA Form 9, March 2018 VA 646, and October 2018 Informal Hearing Presentation. Therefore, the Board will proceed with further appellate consideration. Procedural Matters The Board limits its discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative, and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. & 2. Separate initial ratings of 20 percent each for the right and left ankle disabilities are warranted. Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through the senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Ankles Under Diagnostic Code 5271, the diagnostic code for limitation of motion of the ankle, a 10 percent rating is warranted with “moderate” limitation of ankle motion and a 20 percent rating where there is “marked” limitation of ankle motion. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. The Veteran contends that his bilateral ankle disabilities are more severe than is currently contemplated by the assigned 10 percent disability rating for each ankle. Turning to the evidence, the Veteran was afforded a VA examination in June 2014 for his ankles. The examiner, a physician, diagnosed the Veteran with bilateral ankle sprains with ligament reconstruction. The examiner indicated the Veteran denied having flare-ups that impacted the function of his ankles; however, the examiner also reported the Veteran described the impact of flare ups as making it difficult to walk, bend, and flex his ankles. The Veteran exhibited plantar flexion to 30 degrees with objective evidence of pain beginning at 30 degrees and 0 degrees of dorsiflexion with objective evidence of pain beginning at 0 degrees bilaterally. The Veteran was able to perform repetitive-use testing with three repetitions without additional loss of range of motion bilaterally. The examiner indicated that the Veteran had less movement than normal and pain on movement bilaterally after repetitive use. No pain on palpation, ankylosis, or a history of shin splints was found. The Veteran had normal strength, measured as 5 out of 5, in ankle plantar flexion and dorsiflexion bilaterally. Anterior drawer and talar tilt tests were negative bilaterally. The Veteran had not undergone a total joint replacement in either ankle. The Veteran had Brostrom ankle reconstruction surgery in 2000 and 2001 on the right and left ankles with residuals of difficulty walking, bending, and flexing. The Veteran had surgical scars on each ankle that were not painful and/or unstable and did not cover an area greater than 39 square centimeters (6 square inches). The examiner reiterated that the Veteran had decreased range of motion and pain on movement in both ankles. The Veteran did not use assistive devices as a normal mode of locomotion. X-ray studies had been conducted, and they showed changes status post-surgery to the right ankle involving the distal epiphysis of the right fibula and an old unfused chip fracture off the distal tip of the medial malleolus. The x-ray studies of the left ankle were negative. The Veteran’s ankle disabilities impacted his ability to work in that they limited his ability to stand or walk for prolonged periods, climb, hike, descend stairs, and he could no longer run. The Veteran submitted a statement with his November 2014 notice of disagreement. He reported there was nothing the doctors could do to help him except give him muscle relaxers and pain medication. Instead of taking medications, he dealt with the pain. The Veteran reported the limited range of ankle motion made it difficult to descend stairs in the morning, requiring that he descended sideways, one stair at a time. He had pain in his feet and ankles throughout the day, especially when the weather changed. The Veteran reported that after a 12-hour shift at work, his feet and ankles hurt and throbbed so badly he could barely walk. The Veteran was afforded a VA examination in May 2016 to evaluate the nature and severity of his bilateral ankle disabilities. The examiner, a nurse practitioner, diagnosed the Veteran with right and left ankle sprains with ligament reconstruction. The examiner did not review the Veteran’s medical records or his claims file. The examiner reported that the Veteran’s diagnosis was unchanged for either ankle but noted a progression of the bilateral ankle disabilities with increased pain, decreased range of motion, and overall decreased functional impairment. The Veteran did not report flare-ups in either ankle. He described his functional impairment as being unable to walk more than ½ a mile, do jumping jacks, run without pain, and he walked with a limp. The Veteran exhibited initial dorsiflexion to 15 degrees out of 20 degrees and plantar flexion to 15 degrees out of 45 degrees bilaterally. He exhibited objective evidence of pain, but the examiner indicated it did not cause additional function loss. Range of motion did not itself contribute to the Veteran’s functional loss. There was objective evidence of mild tenderness or pain on palpation to the lateral malleolus, bilaterally. There was evidence of pain on weight bearing on the left ankle, but not on the right ankle. There was evidence of crepitus bilaterally. The Veteran was able to perform repetitive-use testing with three repetitions, bilaterally, without additional loss of range of motion. The examiner found that pain limited the Veteran’s functional ability over time bilaterally and estimated additional function loss to 10 degrees for dorsiflexion and to 10 degrees plantar flexion bilaterally. The examiner found no reduced muscle strength, muscle atrophy, ankylosis, instability, dislocation, shin splints, or other pertinent physical findings bilaterally. The Veteran had scars on each ankle, but they were not painful, and each scar measured 3 centimeters by 0.2 centimeters. The Veteran did not use assistive devices for locomotion. The Veteran submitted a statement with his September 2016 VA Form 9. The Veteran reported that he was an active person who participated in several outdoor sports and activities before his ankles were injured, including being active in his children’s sports programs. However, he could no longer participate in physical activities due to chronic bilateral ankle pain. Upon review of all the evidence of record, the Board finds that the evidence is at least in equipoise as to whether a higher 20 percent rating for each ankle is warranted for the entire rating period on appeal. The Veteran’s overall ankle disabilities more nearly approximate marked limitation of motion in both ankles. Limitation of motion in either ankle was not tested in either the post-service VA or private treatment records. Range of motion testing during the VA examinations showed, at worst, limitation of ankle plantar flexion to 15 out of 45 degrees with objective evidence of pain. Therefore, the Veteran has less than 50 percent of a normal plantar flexion. Additionally, dorsiflexion was also, at worst, measured at 0 out of a possible 20 degrees. Further, the Veteran has also been observed to have localized tenderness or pain on palpation of the joint or associated soft tissue and crepitus bilaterally. When considering the objective evidence of significant limitation of motion, tenderness, and pain, specifically with prolonged standing, walking, ascending and descending stairs, and the inability to run, combined with the Veteran’s additional functional loss after repetitive use over time, the Board finds the Veteran’s bilateral ankle disabilities more nearly approximates a higher 20 percent rating for each ankle under Diagnostic Code 5271 for the rating period on appeal. Resolving reasonable doubt in the Veteran’s favor, a 20 percent rating for the right ankle disability and a separate 20 percent rating for the left ankle disability are granted. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017).  REASONS FOR REMAND 1. Entitlement to a rating higher than 40 percent for the service-connected lumbar disability is remanded. The Veteran’s representative has asserted that the Veteran’s service-connected back disability has worsened since the Veteran’s most recent VA examination in June 2016. See June 2018 statement. The fact that a VA examination is almost two and a half years old is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). However, in this case, the Veteran’s representative’s assertion that his back disability has worsened after the most recent VA examination; therefore, a new VA examination is needed to assist in determining the current severity of the Veteran’s service-connected low back disability. Snuffer, 10 Vet. App. at 400. 2. & 3. Entitlement to a rating higher than 20 percent for the right and left ankle disabilities is remanded. The Veteran’s representative has asserted that the Veteran’s bilateral ankle disabilities have worsened since the Veteran’s most recent VA examination in June 2016. See June 2018 statement. Based on the Veteran’s representative’s assertion that his bilateral ankle disabilities have worsened after the most recent VA examination, a new VA examination is needed to assist in determining the current severity of the Veteran’s service-connected bilateral ankle disabilities. Snuffer, 10 Vet. App. at 400. The matters are REMANDED for the following action: 1. Implement the increases awarded herein with respect to the right and left ankle disabilities. 2. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 3. Then, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and severity of the Veteran’s service-connected back disability and bilateral ankle disabilities. All studies, tests, and evaluations deemed necessary by the examiner should be performed. After a thorough review of the claims file, the examiner must address the following: (a) Elicit from the Veteran all signs and symptoms of the service-connected low back disability and bilateral ankle disabilities. In doing so, obtain information from the Veteran (or the treatment records) as to the frequency, duration, characteristics, severity, and/or functional loss with any repetitive use over time and during flare-ups in each affected joint. (b) Full range of motion testing must be performed where possible. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups, and increased functional loss on repetitive use over time must be considered. In addition to current findings, to the extent possible, assess any additional functional loss during the Veteran’s flare-ups and any increased functional loss on repetitive use over time. (d) The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. *If the examiner is unable to provide such an opinion without resorting to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. *The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). *A thorough explanation must be provided for all opinions rendered. (Continued on the next page)   4. Readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel