Citation Nr: 1808298 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 09-37 207A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a higher initial rating for service-connected right ankle disability, evaluated at 10 percent disabling prior to October 5, 2017, and 20 percent disabling as of October 5, 2017. 2. Entitlement to an increased rating for service-connected right shoulder osteoarthritis, evaluated at 10 percent disabling prior to April 26, 2016, and 20 percent disabling as of April 26, 2016. 3. Entitlement to an increased rating for left ankle osteoarthritis, evaluated at 0 percent disabling prior to August 15, 2016, and 10 percent disabling as of August 15, 2016. 4. Entitlement to an increased rating for obstructive sleep apnea, evaluated at 50 percent disabling. 5. Entitlement to an earlier effective date for total disability rating based on individual unemployment (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Stacy Penn Clark, Attorney ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1992 to October 1994 and from June 1999 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and December 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The August 2008 decision granted service connection for the right ankle disability and assigned an initial disability rating. The Veteran filed a notice of disagreement (NOD) for the rating decision in February 2009. A statement of the case (SOC) was issued in August 2009, and the Veteran perfected his appeal in October 2009. The other issues listed on the title page arrive at the Board with an NOD with the December 2016 decision. The Board remanded the right ankle claim in February 2012 and in September 2015. The September 2015 remand determined the Veteran required a new VA examination as the prior July 2012 VA examination did not contain an x-ray examination to confirm or rule out a diagnosis of arthritis and additional relevant medical records were added to the Veteran's claim file after the most recent supplemental SOC. The Veteran was afforded new VA examinations in September 2016 and October 2017. These examinations considered all evidence in the Veteran's claim file and x-rays were performed in conjunction with the October 2017 examination. Accordingly, the Board finds that the remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). 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 issues of entitlement to an increased rating for the service-connected disabilities of right shoulder osteoarthritis, left ankle osteoarthritis, obstructive sleep apnea, and entitlement to an earlier effective date for TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to October 5, 2017, the Veteran's right ankle disability has not resulted in a marked limitation in range of motion or in ankylosis. 2. Beginning October 5, 2017, the Veteran's right ankle disability has not resulted in ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent disabling for a right ankle disability have not been met for the period prior to October 5, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 2. The criteria for a rating in excess of 20 percent disabling for a right ankle disability have not been met beginning October 5, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59,4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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." See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Period Prior to October 5, 2017 The Veteran was awarded service connection for a right ankle disability, effective August 1, 2007. The Veteran's right ankle disability is evaluated as 10 percent disabling from August 1, 2007 through October 4, 2017. Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of motion. A 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of motion for the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II (2017). Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the 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." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Based on the totality of the evidence, the Veteran's impairment does not approximate the criteria for an evaluation in excess of 10 percent for the period prior to October 5, 2017. The Veteran underwent a VA examination of his right ankle in July 2008. At that time, he reported occasional instability and recurrent strains and sprains occurring every 3 to 4 months, but at baseline he denied any pain, stiffness, weakness, swelling, flare-ups, instability, heat, redness, recurrent subluxation, or dislocation. On examination, the Veteran had plantar flexion to 45 degrees and dorsiflexion to 20 degrees. The examiner noted repetitive testing was unchanged from baseline. The Veteran was afforded an additional VA examination of his right ankle in July 2012. The Veteran reported a daily dull ache and sharp pains depending on the use of the ankle and level of activity. On examination, the Veteran had plantar flexion to 40 degrees and dorsiflexion to 20 degrees with no objective evidence of painful motion. The examiner stated the Veteran did not have any functional loss or functional impairment of the ankle. The Veteran underwent another VA examination in September 2016. On examination, the Veteran had plantar flexion to 25 degrees and dorsiflexion to 15 degrees after repetitive use. The Veteran reported being unable to walk or stand for an extended amount of time. The examiner noted that pain and lack of endurance would limit the Veteran's functional ability with repeated use over a period of time or during a flare-up. The examiner stated that although the examination was not conducted during a flare-up, it is medically consistent with the Veteran's statements describing functional loss during a flare-up. The Board notes that it has reviewed the Veteran's VA and private provider treatment records throughout the appeal period. Although those records show a history of right ankle problems including pain, they generally do not demonstrate any specific treatment for his right ankle during the appeal period. Moreover, insofar as those records demonstrate right ankle symptomatology, the Board notes that such are generally consistent with the findings in the VA examinations noted above. The Board finds that the Veteran's right ankle disability most closely approximates moderate, rather than marked, limitation of motion for the period of August 1, 2007 through October 4, 2017. At its worst, during the September 2016 VA examination, the Veteran's plantar flexion was more than 60 percent of the normal range motion and his dorsiflexion was 75 percent of the normal range of motion. The Board has considered whether the Veteran is entitled to a higher disability evaluation on the basis of functional loss due to pain. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although the Veteran reports pain, he does not experience such a loss of range of motion or functional limitations due to pain that his limitation could be considered "marked." The evidence does not establish that the Veteran's symptoms result in any additional functional limitation to a degree that would support a rating in excess of the current disability rating. The Board acknowledges that the Veteran contends that his service-connected right ankle disability warrants a higher evaluation. In determining the actual degree of disability, however, contemporaneous medical records and an objective examination by a health professional are more probative of the degree of the Veteran's impairment. This is particularly so where the rating criteria require analysis of the clinically significant symptoms and objectively measurable criteria, like range of motion. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the medical opinion of this Veteran, who lacks medical training, is not competent evidence of the clinical significance of his symptoms. Id. Therefore, an evaluation in excess of 10 percent is not warranted. The Board also acknowledges the Veteran's contentions that his July 2008 and July 2012 VA examination were inadequate and not an accurate account of the Veteran's right ankle disability. Based, in part, on these contentions, the Board remanded the Veteran's claim and he was afforded new VA examinations in September 2016 and October 2017. For the period prior to October 15, 2017, there is no evidence of record, including the September 2016 VA examination and private treatment records, which indicates the Veteran approximates the criteria of the rating in excess of 10 percent. The Board also considered whether the Veteran may be entitled to a higher rating under other potentially applicable Diagnostic Codes. With regard to the criteria under Diagnostic Code 5270, there is no evidence of ankylosis of the Veteran's right ankle. Likewise, under Diagnostic Code 5272, there is no evidence of ankylosis of the Veteran's subastragalar or tarsal joint. Further, the findings do not warrant an evaluation under Diagnostic Codes 5273 and 5274, as there is no evidence of malunion of the os calcis or astragalus, or of an astragalectomy. 38 C.F.R. § 4.71a, Diagnostic Codes 5273 and 5274. As such, the Board does not find that the medical evidence supports a schedular rating in excess of 10 percent for the right ankle. The preponderance of evidence is against the assignment of a rating in excess of 10 percent disabling at any point prior to October 5, 2017. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Period Beginning October 5, 2017 The Veteran's right ankle disability is rated as 20 percent disabling beginning October 5, 2017. An evaluation of 20 percent is the maximum rating possible under Diagnostic Code 5217. A 30 percent rating can only be assigned under Diagnostic Code 5270 for ankylosis of the ankle. The Veteran attended an October 2017 VA examination. The Veteran reported pain and that he was unable to walk more than 100 yards at a time. On examination, the Veteran had plantar flexion to 10 degrees and dorsiflexion to 5 degrees with no objective evidence of painful motion. The examination found no evidence of ankylosis. The Board notes that at the October 2017 VA examination the Veteran reported flare-ups of his disability, but the examiner declined to provide an opinion on the Veteran's functional impairment during the flare-ups. However, the Veteran's functional ability during flare-ups does not need to be evaluated in the current case as the Veteran is evaluated at the highest rating available based on limitation of motion. For a higher rating the Veteran would need to have ankylosis, which he does not have. In addition, the October 2017 examination did not address pain on passive and active range of motion and on both weight bearing and non-weight bearing. As stated above, Veteran is evaluated at the highest rating available based on limitation of motion. For a higher rating the Veteran would need to have ankylosis, which he does not have. The Veteran's left ankle is not shown to have ankylosis and therefore an evaluation in excess of 20 percent is not warranted based on the preponderance of the evidence. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER For the period prior to October 5, 2017, entitlement to a rating in excess of 10 percent is denied. For the period beginning October 5, 2017, entitlement to a rating in excess of 20 percent is denied. REMAND During the pendency of the appeal, in a December 2016 rating decision, the RO granted an increased rating for right shoulder osteoarthritis and left ankle osteoarthritis, granted entitlement to TDIU effective April 2016, denied an increased rating for obstructive sleep apnea and tinnitus, and denied service connection for hypersomnia. The Veteran filed an NOD in December 2017 as to the issues of an increased rating for right shoulder osteoarthritis, left ankle osteoarthritis, and obstructive sleep apnea, and entitlement to an earlier effective date for TDIU. As of this decision, no statement of the case has been issued with respect to those issues. Consequently, the Board must remand those issues at this time in order to issue that statement of the case as to those issues. See Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 C.F.R. § 19.9(c) (2017). Accordingly, the case is REMANDED for the following action Furnish the Veteran and his representative an SOC with regard to the claims of entitlement to an increased rating for right shoulder osteoarthritis, left ankle osteoarthritis, and obstructive sleep apnea, and an earlier effective date for entitlement to TDIU. The issues should be returned to the Board only if a timely substantive appeal is received. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs