Citation Nr: 1807207 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-16 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected left fibular-talar ligament tendonitis. 2. Entitlement to an evaluation in excess of 10 percent for left fibular-talar ligament tendonitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from March 1986 to March 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. The issue of entitlement to service connection for a low back disability, to include as secondary to service-connected left fibular-talar ligament tendonitis, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the current appeal period, the Veteran's left ankle disability has resulted in limited range of motion, and pain on motion, but has not most closely approximated marked ankle disability. There has been no showing of ankylosis, and no showing of nonunion of the tibia and fibula. CONCLUSION OF LAW The criteria for a rating of 20 percent, but no higher, for left fibular-talar ligament tendonitis have been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5262 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran underwent a VA medical examination in June 2016 to evaluate the nature and severity of his ankle disability. The Board finds this examination adequate, because it included a review of the medical file, an interview of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Entitlement to an evaluation in excess of 10 percent for left fibular-talar ligament tendonitis. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Court has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2017). Pain on movement, swelling, deformity, or atrophy of disuse is relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2017). Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2017). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The United States Court of Appeals for Veterans' Claims also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. The Veteran's left ankle disability is currently rated under DC 5262, which assigns a rating based on the overall severity of ankle disability. DC 5262 provides that a 10 percent evaluation is warranted where there is malunion with slight ankle disability. 38 C.F.R. § 4.71a, DC 5262 (2017). A 20 percent rating applies where moderate disability is present. Id. A 30 percent rating is warranted where disability is marked. Id. Finally, a 40 percent rating requires a showing of nonunion "with loose motion, requiring brace." Id. The Veteran is currently in receipt of a 10 percent evaluation under the code. Although the evidence does not show actual malunion of the tibia and fibula in the Veteran's case, because his disability affects a similar anatomical region and has residual impact on the ankle and knee, the Board finds that the disability should be rated by analogy to DC 5262. The record does not reflect significant treatment sought or received for the Veteran's left ankle condition during the current appeal period. He has related, however, that he periodically uses a brace on the ankle to manage symptoms, including instability. The Veteran was afforded a VA examination to explore the current nature and severity of his left ankle disability in June 2016. At that examination, the Veteran demonstrated abnormal ranges of motion in dorsiflexion and plantar flexion on the left side; dorsiflexion ranged from 0 to 15 degrees, plantar flexion from 0 to 35. This limitation did not increase following three repetitions of testing. Moreover, pain was noted on examination, but the examiner indicated the pain did not rise to such a level as to cause functional loss. There was evidence of pain with weight bearing, along with localized tenderness to palpation along the left ankle. The Veteran did not report flare-ups, and he demonstrated full muscular strength in both plantar flexion and dorsiflexion on testing. There was no evidence of ankylosis. The examiner indicated he suspected the presence of instability, and accordingly, anterior drawer test and talar tilt test were performed. Both tests were negative. Based on the examination, the VA examiner opined the Veteran was restricted from performing "heavy lifting, carrying pushing [and] pulling," due to his ankle condition, with "no prolonged standing or prolonged ambulation." A review of this evidence convinces the Board that a higher rating of 20 percent for "moderate" ankle disability is appropriate in the Veteran's case. His statements throughout (and preceding) the current appeal period reflect ongoing pain and ambulatory limitation, including his statements at the June 2016 examination. Moreover, objective testing conducted at that examination showed pain on motion and tenderness. Further, although range of motion limitation is not contemplated under DC 5262, even achievement of the Veteran's already limited ankle range of motion causes pain. Finally, although testing did not reveal instability on examination, the Veteran has consistently noted he uses a brace periodically, and that ankle instability is worse at certain times than at others. Accordingly, the Board finds that the Veteran's overall disability picture most closely approximates a "moderate" level of ankle disability. Entitlement to a higher rating, however, is not warranted for any portion of the appeal period. As noted above, the Veteran retains full muscular strength in both plantar flexion and dorsiflexion, and has never required the assistance of an ambulatory device. The examiner opined that pain did not rise to such a level as to cause functional loss, and actual instability of the ankle was not demonstrated on testing, suggesting the problem is merely transient and does not cause disability rising to the "marked" level. Finally, the Veteran did not demonstrate additional loss of range of motion after three repetitions of testing, suggesting he would not be expected to lose significant function with repetitive use of the joint, and he did not report flare-ups. In sum, the preponderance of the medical and other evidence of record shows that a 20 percent rating, but no higher, is warranted for the entire appeal period for a left ankle disability. ORDER Entitlement to a 20 percent rating, but no higher, for the entire period on appeal, for left fibular-talar ligament tendonitis, is granted, subject to the laws and regulations governing the payment of VA compensation. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's service connection claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The Veteran has averred that his low back disability has been caused or aggravated beyond its normal course of progression by his service-connected left ankle disability. The Board observes that the VA examiner with whom the Veteran met in April 2012 furnished an etiological opinion stating that his "actual gait has not caused actual lumbar derangement or discogenic or lumbar pain." However, the examiner did not offer any comments or opinions as to aggravation, ignoring that component of the Veteran's argument averring that his left ankle disability has aggravated his lower back disability beyond its normal course of progression. Hence, the Board finds this opinion wanting, and requires a new VA examination and medical opinion to consider all of the Veteran's contentions. Accordingly, the case is REMANDED for the following action: 1. Give the Veteran an opportunity to identify any outstanding pertinent treatment records, VA or private, related to his low back disability, that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 2. After the above development is accomplished, schedule the Veteran for a VA examination. The claims folder must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. First, the examiner must identify all current low back disorders. Then, for each diagnosis, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the low back disorder manifested in service, or within a year of separation therefrom, or is otherwise causally or etiologically related to the Veteran's military service. Then, the examiner must opine as to whether any diagnosed low back disorder is at least as likely as not (50 percent probability or greater) to have been caused or aggravated beyond its normal course of progression by the Veteran's service-connected left ankle disability, diagnosed as fibular-talar ligament tendonitis, and/or by his service-connected left knee disability. 3. Review the opinion and any examination report to ensure that it is in complete compliance with the directives of this remand. If the opinion or report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to a compensable rating. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs