Citation Nr: 1808008	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  11-21 881	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for post-traumatic changes of the medial and lateral malleoli, status post ligamentous injury of the right ankle (hereinafter referred to as a "right ankle disability").

2.  Entitlement to an initial rating in excess of 10 percent for degenerative changes of the first metatarsophalangeal (MTP) joint and erosion of the fifth metatarsal head of the right foot (hereinafter referred to as a "right foot disability") and for degenerative changes of the first MTP joint and calcaneocuboid articulation with a slight hallux valgus deformity of the left foot (hereinafter referred to as a "left foot disability") (together referred to as "bilateral foot disabilities").


REPRESENTATION

Veteran represented by:	The American Legion



ATTORNEY FOR THE BOARD

Jane R. Lee, Associate Counsel


INTRODUCTION

The Veteran served on active service from September 1956 to February 1957, and from an induction date of October 1957 to December 1957.

This appeal is before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, granted service connection for a right ankle disability, a right foot disability, and a left foot disability; and assigned noncompensable ratings for all three disabilities with effective dates of August 3, 2005.

In September 2010, the Board remanded the issues for further evidentiary development, including the issuance of a Statement of the Case (SOC).  See Manlincon v. West, 12 Vet. App. 238 (1999).  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  While substantial compliance is required, strict compliance is not.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)).

In this case, the Agency of Original Jurisdiction (AOJ) substantially complied with the Board's remand instructions by providing VA examinations for his feet and right ankle in February 2011 and readjudicating the claims in February 2012, January 2013, and October 2017 Supplemental Statements of the Case (SSOCs).

During the pendency of the appeal, in a June 2011 SOC, the AOJ granted a higher initial rating of 10 percent, effective August 3, 2005, for the right ankle disability.  The AOJ also combined the right and left foot disabilities in order to afford a single higher evaluation of 10 percent, effective August 3, 2005, for the bilateral foot disability.  The issues remain in appellate status as the maximum ratings have not been assigned for any period.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

Additionally, the Board acknowledges that earlier effective date claims involving the bilateral foot disabilities and bilateral ankle disabilities were remanded by the Board in September 2010 for the issuance of an SOC. See Manlincon, 12 Vet. App. at 238.  Although the Veteran initially filed an August 2011 VA Form 9 for these earlier effective date claims, he filed a subsequent January 2013 VA Form 9 only listing the rating claims involving the right ankle and bilateral foot disabilities.  The AOJ also sent the Veteran an October 2017 letter in which it acknowledged and confirmed the withdrawal of the earlier effective date claims.  As such, those issues were considered to be resolved, the appeal was closed, and no further action would be taken on those issues.

Furthermore, the Veteran filed for a total disability rating based on individual unemployability due to service-connected disabilities, which was most recently denied by the AOJ in a May 2016 rating decision, to which the Veteran submitted a July 2016 Notice of Disagreement.  The AOJ subsequently granted a TDIU in October 2017 as of December 4, 2014.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issue of a higher initial rating for the Veteran's bilateral foot disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.

FINDING OF FACT

The Veteran's right ankle disability is manifested by mild to moderate limited motion with no evidence of ankylosis.



CONCLUSION OF LAW

The criteria for an initial rating greater than 10 percent for a right ankle disability have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5271 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Preliminary Matter

In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  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."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II.  Initial Rating Claim - Right Ankle Disability

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4 (2017).  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent ("flare-ups") due to the extent of her pain (and painful motion), weakness, premature or excess fatigability, and incoordination - assuming  these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided.  38 C.F.R. § 4.14.

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).
When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49.

In this case, the Veteran's service-connected right ankle disability is evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5010-5271.
Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  The additional code is shown after a hyphen.  The Board acknowledges that the RO first assigned a 10 percent initial rating in June 2011 based on DC 5010, which assigns a rating of 10 percent for each major joint or group of minor joints affected by limitation of motion if the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes.  38 C.F.R. § 4.71a, DC 5010.  However, in the January 2013 SSOC, the RO continued the 10 percent initial rating under DC 5271 based on moderate limited motion.  Regardless of which diagnostic code is applied, an initial rating in excess of 10 percent is not warranted, as will be discussed below.

DC 5010 instructs to rate under DC 5003 for degenerative arthritis.  DC 5003 applies to degenerative arthritis established by x-ray findings and rates on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  However, if the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating 10percent applies for each such major joint or group of minor joints affected by limitation of motion.  Limitation of motion must be objectively confirmed by findings, such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations.

Under DC 5271, marked limitation of motion in the ankle warrants a 20 percent disability rating, and moderate limitation of motion in the ankle warrants a 10 percent disability rating.  See 38 C.F.R. § 4.71a, DC 5271.  The maximum schedular rating available for limitation of motion for the ankle is 20 percent.  38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

For purposes of VA compensation, normal dorsiflexion of the ankle is zero to 20 degrees, and normal ankle plantar flexion is zero to 45 degrees.  See 38 C.F.R. § 4.71a, Plate II.

The Board notes that the words "moderate" and "marked" are not defined in the VA Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  See 38 C.F.R. § 4.6.

Turning now to the evidence, a May 2009 VA examination report reflects review of the Veteran's claims file and his report of right ankle pain.  He was not receiving any treatment or on any medication.  On examination, there was no tenderness to palpation, or varus or valgus angulation; and range of motion was dorsiflexion to 20 degrees and plantar flexion to 40 degrees.  There was no further limitation in range of motion with repetitive activity due to weakness, instability, fatigue, lack of coordination, or endurance for the right ankle.  X-rays of the right ankle reflected likely post-traumatic changes about the medial and lateral malleoli from a ligamentous injury, trace tibiotalar effusion, and minimal calcaneal enthesopathy.

A July 2012 VA treatment record reflects osteoarthritis of the right ankle.

A November 2012 VA examination report reflects a diagnosis of right ankle posttraumatic changes of the medial and lateral malleoli, status post ligamentous injury.  The Veteran reported pain, as well as popping and grinding of the right ankle with flare-ups that occurred with prolonged standing that caused swelling.  Range of motion involved plantar flexion to 30 degrees and dorsiflexion to 20 degrees or greater with no objective evidence of painful motion.  There was no additional limitation of motion following repetitive-use testing.  The Veteran had no localized tenderness or pain on palpation, normal muscle strength testing results with plantar flexion and dorsiflexion, no laxity, and no ankylosis.  The examiner noted that September 2011 x-rays of the right ankle reflected a normal right ankle.

In his January 2013 VA Form 9, the Veteran contended that he had marked limited motion of his right ankle.

A December 2014 VA examination report reflects review of the claims file.  The right ankle was normal upon examination and had normal range of motion.  Pain was noted with dorsiflexion, but did not result in or cause functional loss; and there was evidence of pain with weight-bearing.  Although the VA examiner noted dorsiflexion to 0 degrees and plantar flexion to 0 degrees after three repetitions, she found dorsiflexion to 10 degrees and plantar flexion to 35 degrees immediately after repetitive use over time.  The Veteran reported flare-ups that were moderate, activity-dependent, and lasted for hours.  However, the VA examiner was unable to say without mere speculation whether pain, fatigability, or incoordination significantly limited the Veteran's functional ability with flare-ups.  The Veteran had normal strength, no ankylosis, and no joint instability or dislocation of the right ankle.

A December 2015 VA examination report reflects review of the Veteran's claims file.  Range of motion of the right ankle involved dorsiflexion to 20 degrees and plantar flexion to 45 degrees with no evidence of pain with weight-bearing, no objective evidence of localized tenderness or pain on palpation, and no objective evidence of crepitus.  There was no additional loss of function or range of motion after three repetitions.  The Veteran had normal muscle strength, no muscle atrophy, no ankylosis, and no instability or dislocation suspected.

Based on a careful review of the applicable evidence, both lay and medical, the Board finds that an initial rating in excess of 10 percent for the Veteran's right ankle disability is not warranted for the entirety of the appeal period.

The evidence reflects that the Veteran's right ankle consistently had dorsiflexion to 20 degrees or greater and plantar flexion ranging from 30 to 45 degrees.  The Board acknowledges the December 2014 VA examination report, which reflects normal range of motion for the right ankle; dorsiflexion and plantar flexion to 0 degrees after repetitive-use testing due to pain; and that the Veteran was examined immediately after repetitive use over time with no pain, weakness, fatigability, or incoordination that significantly limited functional ability with repeated use over a period of time.  These findings are unclear and even internally inconsistent as the VA examiner provided two different measurements for range of motion after repetitive use testing; thus these findings have little to no probative weight.  Additionally, they are inconsistent with the remaining evidence of record, especially as the December 2015 VA examination report reflects dorsiflexion to 20 degrees and plantar flexion to 45 degrees, and appear to be abnormal outliers.  Despite the Veteran's contentions of marked limitation of motion in his right ankle, the weight of the evidence reflects that the Veteran had at most moderate limitation of motion, specifically with plantar flexion, which warrants a 10 percent rating.  See 38 C.F.R. § 4.71a, DC 5271.

Additionally, an initial rating in excess of 10 percent is not warranted even under DC 5003 as there is no evidence of x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations.  See 38 C.F.R. § 4.71a, DC 5003.

Furthermore, the Board considered whether a higher rating may be available under other diagnostic codes available to rate the Veteran's right ankle disability.  However, the evidence does not indicate that the Veteran has ankylosis of the ankles (DC 5270) or the subastragalar or tarsal joint (DC 5272), malunion of the os calcis or astragalus (DC 5273), or astragalectomy (DC 5274).  Thus, the other diagnostic codes are not applicable in order to evaluate whether disability ratings in excess of 10 percent are warranted for the Veteran's right ankle disability.

The Board acknowledges that the Veteran's service-connected right ankle disability causes pain.  The presence of pain, as described by the Veteran, is certainly a component of his disability and is contemplated in the rating criteria.  The Board finds that the 10 percent rating assigned adequately portrays any functional impairment, pain, fatigue, weakness, and any flare-ups that the Veteran experiences as a consequence of his right ankle disability.

As such, the Board finds that the weight of the evidence is against an initial rating in excess of 10 percent for the Veteran's right ankle disability for the entirety of the appeal period.  As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

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, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

ORDER

Entitlement to an initial rating in excess of 10 percent for a right ankle disability is denied.

REMAND

Remand is required in this case regarding the issue of a higher initial rating for the Veteran's bilateral foot disabilities for additional development, specifically for a new VA examination.

The Board notes that the Veteran has been specifically service-connected for degenerative changes of the first MTP joint and erosion of the fifth metatarsal head of the right foot, and for degenerative changes of the first MTP joint and calcaneocuboid articulation with a slight hallux valgus deformity of the left foot.  However, in a July 2012 VA treatment record, the Veteran was also assessed with callous/corn, heel arthralgia, metatarsalgia, neuroma, and plantar fasciitis.  The November 2012 VA examiner noted that the Veteran reported symptoms of metatarsalgia affecting only the left foot that was less likely than not secondary to the Veteran's bilateral foot disabilities or his right ankle disability.  However, the December 2015 VA examiner noted a diagnosis of Morton's neuroma of the left foot, but then checked that the Veteran had Morton's neuroma on the right side.  Despite the additional diagnoses involving the bilateral feet, it is not clear what symptoms, if any, are attributable to the Veteran's service-connected bilateral foot disabilities.  As such, a VA examination is required in order to evaluate the Veteran's service-connected bilateral foot disabilities and to determine which symptoms, if any, are attributable to them in order to assess the current severity of the bilateral foot disabilities.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Provide a VA examination by an appropriate medical professional to determine the current severity of the Veteran's bilateral foot disabilities, SPECIFICALLY his service-connected degenerative changes of the first MTP joint and erosion of the fifth metatarsal head of the right foot and degenerative changes of the first MTP joint and calcaneocuboid articulation with slight hallux deformity of the left foot.  The entire claims file must be provided to the examiner for review.  All necessary tests and studies should be accomplished and all clinical findings reported in detail.

The examiner is asked to examine the Veteran, review his claims file, and then respond to the following:

(a)  Identify all diagnoses involving the bilateral feet.  Specifically address the new diagnoses reflected in the claims file, to include callous/corn, heel arthralgia, metatarsalgia, neuroma, and plantar fasciitis.

(b)  State which diagnoses are related to the Veteran's service-connected bilateral foot disabilities.

(c)  Indicate which current symptoms are specifically associated with the Veteran's service-connected bilateral foot disabilities.

The examiner should provide an explanation for any conclusions reached.

2.  After conducting all other development deemed necessary, readjudicate the Veteran's claim for a higher initial rating for his bilateral foot disabilities.  If the benefit sought on appeal is not granted, the Veteran and his representative should be provided an SSOC and an appropriate time period for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The Veteran 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 (2012).



______________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs