Citation Nr: 1808435 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 17-27 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for right and left knee disabilities, to include as secondary to service-connected bilateral pes planus. 2. Entitlement to an initial, compensable disability rating for service-connected residuals of left ankle fracture for the period from August 4, 1979 to September 15, 2008. REPRESENTATION Veteran represented by: Jeany Mark, Attorney at Law ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to August 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a September 2016 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's determination in its March 2015 decision that the Veteran did not timely file a notice of disagreement with respect to the initial rating assigned for his service-connected ankle disability and remanded to the Board the issue of whether the Veteran's April 2009 notice of disagreement encompassed the entire August 2008 rating decision regarding the initial rating assigned. In June 2017, the Board found that the April 2009 notice of disagreement timely initiated an appeal of the initial disability rating assigned for the Veteran's left ankle disability and that the issue of whether an initial compensable rating for the earlier stage of August 4, 1979 to September 15, 2008 was encompassed by the appeal. That issue was remanded by the Board so that a statement of the case could be issued addressing this period. See 38 C.F.R. § 19.9(c) (2017); Manlincon v. West, 12 Vet. App. 238 (1999). A statement of the case was issued in June 2017, and the Veteran perfected an appeal of the issue in August 2017. The Veteran also perfected an appeal for the claim of entitlement to service connection for right and left knee disabilities, and the issue has been merged with the current appeal. In April 2017 correspondence and in the August 2017 Form 9, the Veteran and his attorney argued that a rating higher than 10 percent was warranted for residuals of a left ankle fracture since April 17, 2008. Entitlement to a higher rating for the left ankle disability since April 17, 2008 was denied by the Board in March 2015 and affirmed by the Court in the September 2016 Memorandum Decision, so this decision is final, and the issue is no longer on appeal. If the Veteran would like to submit a new claim for an increased rating for residuals of a left ankle fracture, he and his representative are advised that effective March 24, 2015, VA requires claims to be submitted on a standard application form prescribed by the Secretary. See 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). 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 service connection for right and left knee disabilities and to a rating in excess of 10 percent for service-connected residuals of left ankle fracture for the period August 4, 1979 to September 15, 2008 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Affording the Veteran the benefit of the doubt, from August 4, 1979 to September 15, 2008, the Veteran had arthritis in the left ankle which caused painful motion. CONCLUSION OF LAW From August 4, 1979 to September 15, 2008, the criteria for an initial rating of 10 percent for residuals of left ankle fracture have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5271 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In an August 2008 rating decision, the Veteran was granted entitlement to service connection for residuals of left ankle fracture and assigned a noncompensable (0 percent) evaluation, effective August 4, 1979, the day after his separation from service. The Board has reviewed the evidence of record and finds that while there remain due process concerns that prevent full adjudication of the issue at this time, affording the Veteran the benefit of the doubt, at least a 10 percent rating is warranted for the entire period still on appeal, August 4, 1979 to September 15, 2008. The Veteran's service treatment records show that the Veteran fractured his ankle at the talonavicular joint in service and continued to have pain and mobility problems thereafter. A January 1979 service treatment record states that X-rays showed spurs in the left ankle and traumatic arthritis in the left foot. A March 1979 treatment record diagnosed the Veteran with traumatic arthritis of the left talonavicular joint. An April 1979 physical profile was given to the Veteran for arthritis in the left ankle. In July 1979, it was again noted that the Veteran had degenerative joint disease in the left ankle. After his separation from service in August 1979, the Veteran attended a VA examination in June 1980. The physical examination was normal, but the Veteran reported having a swollen and painful ankle ever since he broke it in service, and he was diagnosed with history of old fracture, "with complaints of pain and stiffness with no findings." The record indicates that the Veteran had been given a diagnosis of arthritis established by X-ray findings in service, and medical evidence shows that this arthritis caused him pain and swelling in the year after his separation from service. Diagnostic Code 5003 states that when arthritis established by X-ray findings is noncompensable under the appropriate diagnostic code for limited motion of that joint, a rating of 10 percent may be applied to each major joint affected. 38 C.F.R. §§ 4.45(f), 4.71a, Diagnostic Code 5003. Additionally, under 38 C.F.R. § 4.59, with any form of arthritis, actually painful joints are entitled to at least the minimum compensable rating. See also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) ("Under 38 C.F.R. § 4.59, the trigger for a minimum disability rating is an 'actually painful, unstable, or malaligned joint [].'"). The Board allows that a 10 percent initial rating is warranted for the Veteran's painful arthritis of the left ankle. As arthritis is considered a chronic disease, the Board accepts that this arthritis continued throughout the entire period from August 4, 1979 to September 15, 2008. See 38 C.F.R. § 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board therefore allows that a 10 percent initial rating from August 4, 1979 to September 15, 2008 is warranted. As additional development is required before the question of whether entitlement to a rating higher than 10 percent is warranted can be adjudicated, this issue is addressed in the remand below. ORDER Entitlement to an initial 10 percent disability rating for service-connected residuals of left ankle fracture for the period from August 4, 1979 to September 15, 2008 is granted. REMAND Residuals of Left Ankle Fracture The Board notes that the Veteran has now been granted a 10 percent rating for the entire period from August 4, 1979 to September 15, 2008, and a previous Board decision, which is no longer on appeal, denied a rating higher than 10 percent since September 15, 2008. Although the Veteran and his attorney have not specifically argued that a rating higher than 10 percent is warranted for the period from August 4, 1979 to September 15, 2008, the Board is obligated to consider whether a rating higher than 10 percent for the period of August 4, 1979 to September 15, 2008 is warranted. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). The record current contains the Veteran's service treatment records and a June 1980 VA examination, but it does not appear that any attempt has been made to obtain the Veteran's VA or private treatment records for the long period which is now on appeal, August 4, 1979 to September 15, 2008. This issue is remanded in order to allow the Veteran an opportunity to submit any relevant records or authorization to obtain records related to the left ankle for this period. Right and Left Knee Disabilities The Veteran also argues that the Veteran's bilateral knee disability has been caused or aggravated by his service-connected pes planus. The Veteran's VA treatment records show that imaging has found degenerative changes in the bilateral knees, tendinopathy in the left knee, and possible patellar tendon lateral femoral condyle friction syndrome in the right knee. A February 2016 treatment record shows that the Veteran was diagnosed with internal derangement and torn meniscus of the right knee and underwent arthroscopy, chondroplasty, and synovectomy. The Veteran attended a March 2014 VA examination, at which the examiner found bilateral knee degenerative joint disease and instability. The examiner stated that the Veteran's condition was less likely than not related to his service-connected pes planus, but provided absolutely no rationale whatsoever. A September 2015 private treatment record has been submitted stating that the Veteran had bilateral medial joint arthritis, and "Knee conditions aggravated by gait pattern with severe flat foot deformity." This medical opinion also provided no further rationale for the opinion found or discussion of whether a baseline of disability prior to aggravation can be determined. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). The Board remands this issue so that the Veteran can be afforded a new VA examination, and a medical opinion can be obtained which adequately addresses the etiology of the Veteran's right and left knee 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. Ask the appellant to identify any and all treatment providers who have treated his left ankle disability between August 4, 1979 and September 15, 2008. The Veteran should also be asked to identify any VA facilities he attended during this period. Adequate attempts must be made to obtain these records from all identified providers. 2. Obtain all outstanding, pertinent records of VA treatment of the Veteran from August 4, 1979 to September 15, 2008, to include all VA facilities identified pursuant to directive #1. 3. All medical records received should be associated with the claims file. If the AOJ cannot locate any records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate the records would be futile. Then: (a) notify the appellant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 4. After completing directives #1-3, schedule the Veteran for a VA examination to determine the nature and etiology of any right or left knee disorder. The examiner must be provided access to all files in Virtual VA and VBMS, and the examiner must specify in the examination report that the Virtual VA and VBMS files have been reviewed. a) What are the Veteran's current diagnoses pertaining to the right and left knees? b) For all knee disorders found, is it at least as likely as not (a 50 percent probability or greater) that the disorder was incurred during or is otherwise related to the Veteran's active duty? c) For all knee disorders found, is it at least as likely as not that the disorder was (i) caused or (ii) aggravated by his service-connected bilateral pes planus or residuals of left ankle fracture? If aggravation is found, can a baseline in severity prior to aggravation be established? Please discuss the September 2015 treatment record indicating that his knee disorder could be aggravated by an altered gait caused by pes planus. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 5. The Veteran is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). 6. Upon completion of any additional development deemed appropriate, the AOJ should readjudicate the issues. If any benefit sought remains denied, the appellant and his attorney should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs