Citation Nr: 1807140	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  12-24 592	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.   Entitlement to service connection for a back disability.

2.   Entitlement to an initial disability rating in excess of 10 percent for a left ankle disability.

3.   Entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Stephen Dale Gragg, Claims Agent


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

R. Dean, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from July 1967 to July 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2011 and July 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In July 2013, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record.

In September 2016, the Board remanded this claim for further development. 

The issues of service connection for a back disability and TDIU are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required. 


FINDING OF FACT

The Veteran's left ankle disability does not show a marked limitation of motion, or ankylosis, even when considering the Veteran's pain and functional loss, or malunion of the os calcis or astragalus with deformity, or that he has undergone an astragalectomy.



CONCLUSION OF LAW

The criteria for an initial evaluation in excess of 10 percent for a left ankle disability are not met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.   Duties to Notify and to Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board").

In an October 2017 letter, the Veteran said that he believed that his September 2017 VA examination was inadequate because the examiner did not ask him questions or examine the X-rays that the Veteran brought with him.  The examiner's opinion indicated that he spoke with the Veteran concerning his pain levels.  The opinion as to the Veteran's ankle disability was also based on a full review of the pertinent evidence in the case, including medical opinions of record, and the December 2011 letter from the Veteran's physician.  Although the examiner may not have specifically reviewed X-rays brought by the Veteran to the examination, the report indicates that X-rays were performed and that they reflected arthritis.  Also, if the X-rays were part of the claims file, then the examiner's indicated review of the file reflects that he would have reviewed such X-ray evidence through that file review.  Therefore, the opinion concerning the Veteran's ankle disability is adequate for adjudication purposes.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  

Neither the Veteran nor his representative has raised any other issues with the duty to assist.  Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
II.  Legal Criteria and Analysis

In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

A 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).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  

A claimant bears the burden of presenting and supporting a claim for benefits.  38 U.S.C. § 5107(a).  In its evaluation, the Board considers all information and lay and medical evidence of record.  38 U.S.C. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).  

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  Hart v. Mansfield, 21 Vet. App. 505 (2008).  

In this case, the Veteran's service-connected left ankle disability is currently assigned a 10 percent rating under the criteria for limitation of ankle motion found at 38 C.F.R. § 4.71a, DC 5271.  Limitation of motion of the ankle is assigned a 10 percent rating for "moderate" limitation and a 20 percent rating for "marked" limitation.  38 C.F.R. § 4.71a, DC 5271.  

While the Rating Schedule does not provide any information as to what manifestations constitute "moderate" or "marked" limitation of ankle motion, guidance can be found in the Veterans Benefits Administration's M21-1 Adjudication Procedures Manual.  Specifically, the M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.  See VBA Manual M21-1, III.iv.4.A.4.o.

The Veteran was afforded VA examinations of his left ankle in March 2012 and September 2017.  The March 2012 examination report recorded left ankle dorsiflexion to be from zero to 10 degrees and left ankle plantar flexion to be from zero to 30 degrees.  The Veteran started to experience pain at 10 degrees of left ankle plantar dorsiflexion and 30 degrees of left ankle plantar flexion.

The September 2017 examination report recorded left ankle dorsiflexion to be from zero to 20 degrees and left ankle plantar flexion to be from zero to 40 degrees.  In the September 2017 examination the examiner noted pain on examination during plantar flexion and dorsiflexion and noted that it causes functional loss by way of less range of motion.  The September 2017 examiner noted that there was no evidence of pain with weight bearing or on palpation of the joint or associated soft tissue, and there was no objective evidence of crepitus.

In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. § 4.40 and 4.45.  See DeLuca v. Brown, 8 Vet. App. 202, 205 (1995).  The March 2012 examiner reported that there was functional loss or impairment of the ankle after repetitive use, including reduced movement, weakened movement, pain on movement, and swelling.  The examiner also noted that both of the Veteran's ankles had instability of station and interfered with sitting, standing, or weight-bearing, although there was no localized tenderness or pain on palpation of either ankle.  Both ankles showed full strength in plantar flexion and dorsiflexion.  Neither ankle showed laxity in the anterior drawer test for joint stability but both showed laxity in the talar tilt test.

During the September 2017 VA examination, the Veteran said that the ankle was slightly worse than at the 2012 examination, that it was painful sometimes and not painful at other times, and that the pain was greater after activity.  The Veteran reported functional loss in his range of motion and the examiner agreed that the reduced range of motion constituted a functional loss.  The Veteran did not show signs of pain when the ankle was bearing weight but did show signs of pain during dorsiflexion and plantar flexion.  There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue or of crepitus.  The Veteran was able to perform repetitive use testing with at least three repetitions and his strength in dorsiflexion and plantar flexion was 5/5.  The September 2017 examiner could not measure pain, weakness, fatigability, or incoordination with repeated use or during a flare-up because such measurement is impossible without directly observing function under those conditions.  The examiner found laxity in the left ankle in the talar tilt test but not the anterior drawer test.  The Veteran did not use an assistive device as a normal mode of locomotion.  

At a Board hearing in July 2013, the Veteran testified that the pain and swelling in the ankle makes him limp and leads to problems balancing, and he said that the symptoms of his disability had gotten worse since his last VA examination in March 2012.

In July 2013, a private physician provided a written statement of the Veteran's limitations.  The physician found that the Veteran was able to stand and walk for up to two hours in an eight-hour workday and did not require a hand-held assistive device, but he could not sit for six hours in a normal seated position.  The private physician reported that the Veteran must be able to elevate his legs and that he cannot sustain activity at a pace and with the attention to task as would be required in the competitive workplace but also said that the Veteran can be expected to attend employment on a sustained basis for 8 hours a day, five days a week (see Medical Treatment Record - Non-Government Facility, August 2013).

The competent and probative evidence of record does not more nearly approximate functional loss due to the Veteran's moderate limitation of motion of the left ankle that would more nearly approximate marked limitation of motion, or ankylosis of the ankle. 

With respect to rating under other criteria, the evidence of record, including the March 2012 and September 2017 VA examinations, do not reflect findings showing ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus with deformity, or that he has undergone an astragalectomy.  Therefore, he is not entitled to a higher rating for his left ankle disability under any of these criteria.

The Board finds that the preponderance of the evidence is against the appellant's claim.  Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a rating in excess of 10 percent for the Veteran's limitation of motion of the left ankle is denied.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  


ORDER

An initial evaluation in excess of 10 percent for a left ankle disability is denied.


REMAND

Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 

In the present case, the record contains a September 2017 VA opinion indicating, in effect, that it is unlikely that the Veteran's back disability is related to service.  The Board finds, however, that the opinion is inadequate, inasmuch as the opinion was based on the lack of evidence of the reported injury in the Veteran's service treatment records.  A new examination and opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve the appellant's claim.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The issue of entitlement to TDIU is potentially affected by the decisions on the issue of service connection for back disability, therefore, the issues are inextricably intertwined and entitlement to TDIU should also be remanded.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

Finally, the most recent VA treatment records are from December 2016.  As the record reflects that the Veteran receives continued VA treatment, updated VA treatment records should be obtained and associated with the claims file.

Accordingly, the case is REMANDED for the following actions:

1.   Obtain and associate with the claims file VA treatment records from December 2016 to the present.

2.   After receiving all additional records, provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of his back disability.  The electronic claims file must be made available to the examiner for review in connection with the examination.  All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file.

Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's back disability is related to the Veteran's service, to include the Veteran's claimed in-service back injury incurred while changing a tire and throwing it into the back of a truck?

For purposes of this examination, the examiner is asked to assume the Veteran's report of injuring his back during service by changing a tire and throwing it into the back of a truck is credible.

The examiner must provide a complete rationale for any opinion expressed.  If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

3.   After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claims.  If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



____________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs