Citation Nr: 18159269 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-51 917 DATE: December 19, 2018 ORDER Entitlement to an initial rating of 20 percent for chronic left ankle strain 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 a right ankle disability, to include as secondary to service-connected left knee strain, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee strain, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected left knee strain, is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected left knee strain, is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected left ankle disability has been manifested by marked limitation of motion with no ankylosis or deformity. CONCLUSION OF LAW The criteria for an initial rating of 20 percent, but no higher, for chronic left ankle strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active Duty in the United States Air Force from March 1977 to August 1981. During his period of service, the Veteran earned the Air Force Good Conduct Medal and Air Force Longevity Service Award. Left Ankle Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); see also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’ in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The Veteran’s service-connected left ankle disability is evaluated under DC 5271, applicable to limited motion of the ankle. Under DC 5271, a 10 percent rating is warranted for moderate limitation of motion of the ankle. A 20 percent rating is warranted for marked limitation of motion of the ankle. In this regard, the Board notes that normal ranges of ankle motion are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran appeared for a VA ankle conditions examination in May 2013. The examiner noted a diagnosis of chronic left ankle strain. The Veteran reported flare-ups that impacted the function of his ankle by increased pain when climbing ladders, squatting, and walking on uneven terrain. The examiner recorded that left ankle plantar flexion ended at 40 degrees, with evidence of painful motion beginning at 30 degrees. Left ankle dorsiflexion ended at 5 degrees, with evidence of painful motion beginning at 0 degrees. The Veteran was able to perform repetitive-use testing with three repetitions, with post-test plantar flexion ending at 35 degrees and dorsiflexion ending at 0 degrees. The examiner observed functional loss, functional impairment, and/or additional limitation of ROM of the ankle after repetitive use. Contributing factors were less movement than normal and pain on movement. The examiner also observed localized tenderness or pain on palpation of joints/soft tissue in the left ankle. The examiner observed no decrease in muscle strength, laxity, or ankylosis. An x-ray did not show degenerative or traumatic arthritis. The Veteran most recently appeared for a VA ankle conditions examination in July 2016. The Veteran reported that his left ankle felt stiffer with less movement and more pain with activities. He further reported that he could stand between 30 and 60 minutes. The only support he wore was a simple slip-on anklet, which he stated he wears three or four times per week. The examiner recorded that left ankle plantar flexion ended at 40 degrees, with left ankle dorsiflexion ending at 15 degrees. Inversion on the left was 30 degrees. Eversion was 20 degrees. There was no pain during motion nor repetition and no changes in motion with repetition. The examiner indicated that there was minimal loss of dorsiflexion. Left ankle inversion was greater than the right due to an increased medial talar tilt (lateral ligament laxity). Left ankle eversion was decreased to 3/5, indicating weakness of the peroneal muscles compatible with his lateral ankle ligament injury. Swelling and pitting edema was also observed. There is no incoordination, pain on movement, deformity, atrophy, instability of station, disturbance of locomotion, and no specific interference with standing, sitting or weightbearing because of the left ankle. There was no ankylosis or pain on palpation. There was no x-ray evidence of degenerative or traumatic arthritis. The examiner diagnosed lateral ligament sprain, left ankle, with slight instability and peroneal muscle weakness. In considering the evidence of record and resolving all reasonable doubt in the favor of the Veteran, the Board finds that the Veteran is entitled to an initial 20 percent evaluation for his service -connected left ankle disability for the entire period on appeal. When considering his limited range of motion, decreased ankle eversion, and reports of pain and stiffness, the Board finds that it is reasonable to conclude that his limitation of motion of the ankle is marked. Affording the Veteran the full benefit of the doubt, the Board finds that the totality of the evidence favors the assignment of an initial 20 percent rating for the left ankle disability throughout the appeal period. This is the maximum rating available under Diagnostic Code 5271. Additionally, there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the now assigned 20 percent disability rating throughout the appeal period. Assignment of staged ratings is not warranted. See Fenderson, supra. Although an increased rating of 20 percent is warranted, the evidence of record does not reflect symptoms that would meet the criteria for a higher rating for any period of time during the pendency of the claim. The Board has also considered the application of the remaining DCs in an effort to determine whether a higher rating may be warranted for the Veteran’s left ankle disability. The only diagnostic code pertaining to the ankle that provides a rating in excess of 20 percent is DC 5270, which requires evidence of ankylosis. As the evidence consistently indicates the Veteran does not have ankylosis of the left ankle, a rating higher than 20 percent cannot be assigned. The Board has considered all other diagnostic codes pertaining to the ankle but none apply. Again, as there is no evidence that the ankle is ankylosed, DC 5272 does not apply. Diagnostic Code 5273 does not apply because it requires evidence of malunion of os calcis or astragalus, which is not indicated here. Similarly, DC 5274 does not apply because it requires evidence of an astragalectomy, which is also not indicated by the record. Accordingly, the Board finds that the Veteran’s left ankle disability warrants a 20 percent rating throughout the appeals periods, but that the claim of entitlement to an initial disability rating in excess of 20 percent must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased initial rating, beyond that assigned herein, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is causally related to his service. The Veteran appeared for a VA hearing loss examination in May 2013. The Veteran reported that worked with aerospace ground equipment during service. The Veteran reports that he experienced excessive noise in the form of turbine generators, motor generators, and jets on a daily basis. He indicated that hearing protection was used most of the time and was always provided. He denied a history of civilian occupational noise exposure while working as an electrician and general contractor for 30 years. He further denied a history of recreational noise exposure, as well as any medical history, family history, or ototoxic drug history of hearing loss. At that time, the examiner diagnosed bilateral hearing loss for VA purposes. The examiner determined that she could not provide a medical opinion regarding the etiology of the Veteran’s hearing loss without resorting to speculation, as the service medical records are not complete at the time of examination. The examiner indicated that audiometric data from 1976 to 1978 showed hearing within normal limits bilaterally with no significant shift; however, audiometric data was missing from separation. The examiner noted that she could form an informed opinion if the data were found. The Board notes that a formal finding regarding the unavailability of the Veteran’s complete service treatment records was made in April 2013. When service records are unavailable through no fault of a veteran, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran most recently appeared for a VA hearing loss examination in July 2016. At that time, the examiner indicated that the test results were inconsistent. The examiner further noted that there was poor intertest reliability. As such, the test results were considered invalid and unreliable and therefore, were not reported. With regard to the May 2013 VA examination, the Board acknowledges that the Court has held that generally, where an examiner is unable to give an opinion without resorting to mere speculation, there is no opinion offered. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The Board notes that the Veteran’s separation audiogram has since been associated with the record in conjunction with the representative’s May 2017 BVA 90 Day Response. Thus, a remand is necessary to provide the Veteran with a new VA examination and opinion relating to his claim for service connection for bilateral hearing loss. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Tinnitus The Veteran contends that his recurrent tinnitus is causally related to his service. The Veteran appeared for a VA hearing loss examination in May 2013. The examiner indicated that there was no diagnosis of recurrent tinnitus. The examiner determined that she could not provide a medical opinion regarding the etiology of the Veteran’s tinnitus, as the Veteran denied tinnitus; therefore, an opinion was not needed. The Veteran most recently appeared for a VA hearing loss examination in July 2016. At that time, the examiner indicated that the test results were inconsistent. The examiner further noted that there was poor intertest reliability. As such, the test results were considered invalid and unreliable and therefore, were not reported. The Board cannot make a fully-informed decision on the issue of service connection for tinnitus because the only VA opinion of record, dated in May 2013, relied on inaccurate history. Significantly, the examiner indicated that there was no diagnosis of recurrent tinnitus. The examiner determined that she could not provide a medical opinion regarding the etiology of the Veteran’s tinnitus, as the Veteran denied tinnitus. However, in the representative’s May 2017 BVA 90 Day Response, he indicated that the Veteran stated in a private December 2015 conversation that he indeed suffered from recurrent tinnitus and has for many years. Thus, considering the Veteran’s reports of recurrent tinnitus, this claim must also be remanded for a new VA examination and opinion relating to his claim for service connection for tinnitus. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Right Ankle The Veteran contends that he has a right ankle disability that is causally related to his service, or, in the alternative, secondary to his service-connected left ankle disability. The Veteran appeared for a VA ankle condition examination in May 2013. The examiner noted a normal physical examination of the right ankle with subjective complaints. The examiner further noted that the right ankle was mentioned in a March 1981 service treatment record for a strain that clear rapidly without sequelae. Upon examination, the examiner did not render a diagnosis of right ankle disability. The Veteran most recently appeared for a VA ankle examination in July 2016. Though the examiner noted that the Veteran had twisted his right ankle in service, he indicated that the Veteran was not claiming any disability for his right ankle. The examiner further noted that functional limitations of the right ankle were likely to be physiologic since the right ankle was asymptomatic. Lastly, the examiner indicated that the inversion and eversion of the right ankle was more likely than not limited because of the Veteran’s lower extremity swelling than any joint abnormality. The Board finds the July 2016 examiner’s opinion inadequate for adjudication purposes for several reasons. The examiner inaccurately noted that the Veteran was not claiming any disability for his right ankle. Next, the examiner inaccurately noted that the Veteran’s right ankle was asymptomatic. The examiner failed to address the Veteran’s contentions of right ankle symptomatology since service. Lastly, the examiner failed to offer an opinion as to whether the Veteran’s claimed right ankle disability was related to his service-connected left ankle disability. Thus, the Board finds that a remand is necessary to provide the Veteran with a new VA examination and opinion relating to his claim for service connection for a right ankle disability, to include as secondary to his service-connected left ankle disability. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Right and Left Knees The Veteran contends that he has right and left knee disabilities that are causally related to his service, or, in the alternative, secondary to his service-connected left ankle disability. The Veteran appeared for a VA knee examination in July 2016. At the time of the examination, the Veteran reported that he did not have any problems with his knees prior to his March 2003 motor vehicle accident, at which time his knees were forced against the dashboard of the car. As a result of this injury, the veteran underwent bilateral knee arthroscopies. The examiner opined that the Veteran’s history of bilateral knee injury in the March 2003 motor vehicle accident, subsequent arthroscopic surgery, and the appearance of medial compartment joint space narrowing in 2003, combined with the progression of the medial compartment osteoarthritis at the time of examination would indicate that it was more likely than not that the motor vehicle accident and subsequent surgery in 2003 led to the medial compartment osteoarthritis. The examiner noted that there was no indication that the Veteran’s service-connected left ankle was in any way connected to the development of osteoarthritis in the face of motor vehicle accident injury and surgery. The examiner further opined that it was more likely than not that the Veteran’s work as an electrician, which required kneeling and squatting, contributed to his medial compartment knee osteoarthritis. The Board finds the July 2016 examiner’s opinion inadequate for adjudication purposes, as the examiner failed to address the Veteran’s contentions of right and left knee symptomatology since service as a result of climbing ladders, squatting, and applying pressure to his knees as a result of his military occupational specialty (MOS) as an aerospace ground equipment mechanic. Further, the examiner failed to consider the Veteran’s contentions of increased knee pressure and pain because of altered gait secondary to his service-connected left ankle disability. Thus, the Board finds that a remand is necessary to provide the Veteran with a new VA examination and opinion relating to his claim for service connection for right and left knee disabilities, to include as secondary to his service-connected left ankle disability. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Lumbar Spine The Board notes that the Veteran has not been afforded a VA examination with respect to his current claim for service connection for a lumbar spine disability. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2017). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran contends that he has a lumbar spine disability secondary to his service connected left ankle disability. A 2005 radiology report indicates an impression of diffuse dextroscoliosis and minimal degenerative arthritis. As such, the Board finds that a remand for examination is warranted to ascertain whether the Veteran’s lumbar spine disability is etiologically related to his service-connected left ankle disability. See McLendon, supra. As the case is being remanded, the Board will take the opportunity to obtain any updated treatment records. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his claimed disabilities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding, relevant VA medical records should also be obtained and associated with the claims file. 2. After the foregoing development has been completed, schedule the Veteran for VA examinations with the appropriate examiner(s) to address the nature and etiology of his bilateral hearing loss, tinnitus, right ankle, right knee, left knee, and lumbar spine disabilities. The examiner(s) must review pertinent documents in the Veteran’s claims file in conjunction with the examinations. This must be noted in the examination reports. Any studies, tests, and evaluations deemed necessary by the examiner(s) should be performed. (a.) With regard to the bilateral hearing loss claim, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a current hearing loss disability was incurred in service or are otherwise medically related to service, to include noise exposure therein. The examiner should take as fact the Veteran’s exposure to hazardous noise in service. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner’s attention is directed to the Veteran’s separation audiogram, which has been associated with the record in conjunction with the representative’s May 2017 BVA 90 Day Response. The examiner is also directed to address the research articles submitted by the Veteran’s representative in May 2017. (b.) With regard to the tinnitus claim, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s claimed recurrent tinnitus was incurred in service or are otherwise medically related to service, to include noise exposure therein. The examiner should take as fact the Veteran’s exposure to hazardous noise in service. The examiner’s attention is directed to the Veteran’s reports of experiencing recurrent tinnitus for many years, as indicated in the representative’s May 2017 BVA 90 Day Response. (c.) With regard to the right ankle claim, the examiner should provide an opinion as to it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s claimed right ankle disability had its onset in service or is otherwise etiologically related to active service, or was caused or aggravated by his service-connected left ankle disability. In providing this opinion, the examiner is reminded that the Veteran is competent to report continuous symptoms of right ankle pain since service. (d.) With regard to the right knee claim, the examiner should provide an opinion as to it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s claimed right knee disability had its onset in service or is otherwise etiologically related to active service, or was caused or aggravated by his service-connected left ankle disability. In providing this opinion, the examiner is reminded that the Veteran is competent to report continuous symptoms of right knee pain since service. (e.) With regard to the left knee claim, the examiner should provide an opinion as to it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s claimed left knee disability had its onset in service or is otherwise etiologically related to active service, or was caused or aggravated by his service-connected left ankle disability. In providing this opinion, the examiner is reminded that the Veteran is competent to report continuous symptoms of left knee pain since service. (f.) With regard to the lumbar spine claim, the examiner should provide an opinion as to it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s claimed lumbar spine disability had its onset in service or is otherwise etiologically related to active service, or was caused or aggravated by his service-connected left ankle disability. The examiner’s attention is directed to the 2005 radiology report that indicates an impression of diffuse dextroscoliosis and minimal degenerative arthritis submitted in conjunction with the representative’s May 2017 BVA 90 Day Response. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel