Citation Nr: 1817154 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 08-13 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to a rating in excess of 20 percent for a right ankle disability from April 2, 2012. 2. Entitlement to a rating in excess of 20 percent for a left ankle disability from April 2, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1963 to May 1966. This matter is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (CAVC). A June 2014 CAVC Order remanded the matters for compliance with instructions in a May 2014 Joint Motion for Partial Remand (JMPR) by the parties. [The Veteran did not appeal denials of ratings in excess of 10 percent for left and right ankle disabilities prior to April 2, 2012. Those claims were deemed abandoned, and the CAVC dismissed those matters in the June 2014 Order; they are no longer before the Board.] The matters were originally before the Board on appeal from an April 2007 rating decision by the St. Petersburg Department of Veterans Affairs (VA) Regional Office (RO). In March 2012, the Board remanded the claims for additional development. A July 2013 Board decision, in pertinent part, denied ratings in excess of 20 percent for the left and right ankle disabilities from April 2, 2012. The Veteran appealed the Board decision to the CAVC, resulting in the JMPR. In September 2014, February 2015, April 2016, and May 2017, the Board remanded the claims for additional development. FINDINGS OF FACT 1. At no time from April 2, 2012 is the Veteran's right ankle shown to have been ankylosed, or to have exhibited manifestations/caused impairment equivalent to ankylosis. 2. At no time from April 2, 2012 is the Veteran's left ankle shown to have been ankylosed, or to have exhibited manifestations/caused impairment equivalent to ankylosis. CONCLUSIONS OF LAW 1. A rating in excess of 20 percent for the right ankle disability from April 2, 2012 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5270, 5271 (2017). 2. A rating in excess of 20 percent for the left ankle disability from April 2, 2012 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Codes 5270, 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in March 2007. In February 2017 and August 2017 statements, the Veteran asserted the VA examiner who performed the January 2016 VA examination would not listen to the his reports, told him to shut up, and did not conduct any testing. He (and his representative in an April 2016 appellate brief) also reported the VA examination report included inconsistencies regarding the functional impact of the service-connected disabilities. In an August 2016 addendum, the VA examiner clarified his findings and noted he used a goniometer to measure ankle range of motion during the examination. Noting the Veteran's reports, the Board has found that the January 2016 and August 2016 addendum opinion note the symptoms and impairment associated with the ankle disabilities. In August 2016 the examiner specifically indicated that a goniometer was used to measure ranges of motion. There is no indication that the findings are inaccurately reported, and the Board finds no reason to find the examiner not credible. The Board observes that documentation in the record reflects that the Veteran was offered, and declined, the opportunity for another VA examination. Instead, an addendum opinion was sought from another examiner. The December 2017 examiner reviewed and summarized the relevant medical records in detail, and provided rationale for her opinions. Accordingly, the Board finds that the examination report and addendum cumulatively adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran and his representative have not raised any other issues regarding VA's duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Factual Background The Board notes that it has reviewed all of the evidence in the Veteran's 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). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. On April 2, 2012 VA examination, bilateral ankle degenerative joint disease (DJD) was diagnosed. The Veteran reported constant ankle pain that he rated as 5/10 with flare-ups of more severe pain (8/10) that lasted an hour and were aggravated by standing or walking. On range-of-motion testing, right ankle plantar flexion was to 20 degrees with pain beginning at that point. Right ankle dorsiflexion was to 5 degrees with pain beginning at that point. Left ankle plantar flexion was to 25 degrees with pain beginning at that point. Left ankle dorsiflexion was to 10 degrees with pain beginning at that point. The examiner suggested the limitation of motion was due to personal effort. There was no additional limitation of motion on repetitive testing. The examiner checked the appropriate boxes to indicate the contributing factors of disability included less movement than normal, weakened movement, incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Muscle strength testing was rated as 4/5, or active movement against some resistance. The examiner was unable to perform joint stability testing because the Veteran complained of pain with just slight touches to the ankle area. There were no outward signs of inflammation. The examiner checked the appropriate box to indicate that there was ankylosis of both ankles in plantar flexion, less than 30 degrees; in dorsiflexion between 0 and 10 degrees; with abduction, adduction, inversion, or eversion deformity; in good-weight bearing position; and in poor weight-bearing position. The examiner checked the appropriate box to indicate that the Veteran had not had shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus, or talectomy. The examiner noted that the Veteran regularly used a brace and cane, and that X-rays showed enthesophytes, and were suggestive of bilateral DJD, but did not check the appropriate box to indicate they also showed ankylosis. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the ankle disabilities. The Veteran reported he could not walk long distances. He retired in 2006. An April 2014 private treatment record notes the Veteran had longstanding DJD. He complained of increased pain and numbness in the lower legs. On examination, range of motion was severely limited due to pain. There was pain with minor plantar flexion, dorsiflexion, inversion, and eversion. There was also mild swelling. DJD was diagnosed; no neurologic abnormalities were noted. In a May 2014 letter (received in September 2014), a private treating physician, Dr. Rush, reported recent X-rays revealed arthritis of the ankles with ankylosis. He noted the ankle disabilities caused the Veteran daily pain and weakness that required use of a cane for ambulation. Standing for more than five minutes caused pain. There was pain with even minor movement. He had occasional swelling. His gait was hobbled. Dr. Rush opined that ankle pain severely impaired the Veteran's ability to perform daily activities. In an August 2014 statement, the Veteran asserted that medical evidence showed there was ankylosis of both ankles. He reported Dr. Rush told him X-rays are not a reliable way to detect ankylosis. On October 2014 VA examination, the Veteran reported his ankle disabilities had increased in severity with increasing pain and further limitation of motion. He reported the ankle disabilities caused him to frequently fall. He reported he minimally helped with household chores, did not perform yard work, and only drove short distances. On range-of-motion testing, left ankle dorsiflexion was to 10 degrees, and plantar flexion was to 15 degrees. Right ankle dorsiflexion was to 5 degrees and plantar flexion was to 10 degrees. There was not a reduced range of motion on repetitive testing. The examiner described the range of motion as suboptimal and opined it was reduced by personal effort and pain caused by spurs on Achilles tendon insertion. There was evidence of pain with weight bearing. The examiner noted pain and fatigue significantly limited functional ability over time. The examiner opined left ankle dorsiflexion was limited to 5 degrees and that left ankle plantar flexion was limited to 10 degrees after repetitive use. Right ankle dorsiflexion was limited to 0 degrees, and plantar flexion was limited to 5 degrees. The examination was not performed during a flare-up, and the examiner opined the examination neither supported nor contradicted the Veteran's statements that ankle pain flare-ups caused him to fall. Muscle strength testing was rated as 4/5, and the examiner opined the reduction in strength was due to the service-connected ankle disabilities. The examiner indicated there were not additional contributing factors of disability for either ankle. Ankle instability or dislocation was not suspected. The examiner checked the appropriate box to indicate he had not had shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus, or a talectomy. He regularly used a cane for balance. The examiner stated that the prior diagnoses of ankylosis were erroneous. She explained that a March 2007 X-ray did not show radiological evidence to support the presence of ankylosis. She opined the ankle disabilities impacted on the Veteran's ability to perform occupational tasks. He reported that he could only walk 20 steps a day, and stated that he did not stand a whole lot. The examiner noted that the Veteran drove to the appointment and walked with a cane from the parking lot, a distance of about 100 feet. He walked with a slightly antalgic gate. The examiner noted she was not able to view the May 2014 letter from Dr. Rush. A February 2015 private treatment record shows the Veteran complained of bilateral ankle pain. Dr. Rush noted the Veteran had longstanding DJD and ankylosis. On examination, the range of motion was severely limited due to pain. There was pain with minor plantar flexion, dorsiflexion, inversion, and eversion. There was also mild swelling. A right ankle X-ray revealed spurring indicative of mild osteoarthritis and calcifications in the plantar fascia consist with chronic or previous plantar fasciitis. A left ankle X-ray revealed bony proliferative changes consistent with talar breaking off of the dorsal anterior talus and spurring Achilles attachment onto the calcaneus and minimal plantar surface calcaneus. In a June 2015 statement, the Veteran contended the limitation of motion on the 2012 and 2014 VA examinations showed ankylosis in both ankles. He again noted treatment providers told him ankylosis doesn't show on X-rays. On November 2015 VA examination, the Veteran reported constant ankle pain that was aggravated with walking and standing. He also reported increased stiffness and that Dr. Rush diagnosed ankylosis. He used a cane for support while walking and standing. He did not report flare-ups. On range of motion testing, right ankle dorsiflexion was 0 to 10 degrees and plantar flexion was 0 to 15 degrees. Left ankle dorsiflexion was 0 to 10 degrees, and plantar flexion was 0 to 20 degrees. There was no additional loss of function or range of motion after repetitive testing, and no pain with weight bearing. The examiner noted the examination did not occur immediately after repetitive use over time and opined the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Muscle strength testing was normal. The examiner checked the appropriate boxes to indicate there was no ankylosis in either ankle. Ankle instability or dislocation was suspected. The examiner checked the appropriate box to indicate the Veteran had not had shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus, or a talectomy. The examiner noted examination of the ankles revealed no swelling, palpable tenderness, weakness, or instability. The examiner opined the ankle disabilities did not impact his ability to perform any type of occupational task. The examiner opined the decreased range of motion was due to pain and suboptimal effort. The examiner noted the Veteran was observed ambulating to the evaluation room with a correct heel-to-toe stride even though his gait was unusual. A left ankle X-ray was normal; a right ankle X-ray revealed progressive degenerative osteoarthritis of the midfoot and hindfoot. On January 2016 VA examination, the Veteran reported constant bilateral ankle pain. He reported his right ankle was extremely stiff and wouldn't bend. He reported he used a cane because his ankle disabilities caused him to fall. He reported he had flare-ups of pain that lasted a few minutes once or twice a day. On range-of-motion testing, right ankle dorsiflexion was 0 to 10 degrees and plantar flexion was 0 to 30 degrees. Left ankle dorsiflexion was 0 to 10 degrees, and plantar flexion was 0 to 25 degrees. There was no additional loss of function or range of motion after repetitive testing. The examiner checked the appropriate box to indicate the abnormal range of motion did not itself contribute to a functional loss and noted the pain did not result in or cause functional loss. There was pain on palpation, but not with weight bearing. The examiner noted that he was examined immediately after repetitive use over time and that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated used over time. The examiner noted the examination was not conducted during a flare-up and opined the examination was neither medically consistent not inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Muscle strength testing was normal. The examiner checked the appropriate boxes to indicate there was no ankylosis in either ankle. The examiner noted there was no evidence of ankylosis of any type on X-ray or on physical examination. The examiner explained that limitation of motion secondary to pain is not the same as ankylosis, which is a mechanical fusion, adhesion, or rigidity of the joint. Ankle instability or dislocation was suspected. There was no laxity in an ankle compared to the other. The examiner checked the appropriate box to indicate the Veteran had not had shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus, or a talectomy. The examiner noted the Veteran retired in 2006 and opined the ankle disabilities did not impact his ability to perform any type of occupational task. In an August 2016 addendum the examiner who performed the January 2016 examination noted that he had indicated there was mild functional limitation in the remarks section of the examination report. He reported the range of motion of the ankles was measured using a goniometer. In a May 2017 statement, the Veteran contended the medical evidence showed he had bilateral ankle ankylosis. In a December 2017 opinion, another VA physician who reviewed the record summarized the medical evidence, including ankle X-ray reports, and opined there is insufficient evidence to warrant or confirm a diagnosis of acute or chronic bilateral ankle ankylosis (or residuals of such). The examiner explained that multiple VA examinations from 2001 to 2016 and X-ray reports from 1964 to 2015 showed no objective evidence of ankylosis. She concluded that the diagnoses of the January 2016 VA examiner remained unchanged. Legal Criteria Disability evaluations are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Veteran's ankle disabilities have been assigned 20 percent ratings from April 2, 2012 under Code 5271. Under Code 5271, a maximum 20 percent rating is assigned for marked limitation of ankle motion. 38 C.F.R. § 4.71a, Code 5271. Normal range of motion of the ankle is from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Under Code 5270, a 20 percent rating is warranted for ankylosis of the ankle in plantar flexion less than 30 degrees; a 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees; and a 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Code 5270. Other codes for ankle disabilities-5272, 5273, and 5274-do not provide for ratings in excess of 20 percent and require pathology not shown here, i.e., ankylosis, of the subastragalar or tarsal joint, malunion, or astragalectomy. 38 C.F.R. § 4.71a. 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). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis Essentially, what the Veteran must show to establish that the right and left ankle disabilities warrant ratings in excess of 20 percent is that there is ankylosis of the ankles. The record includes both medical evidence that tends to support his claim and medical evidence that weighs against his claim. The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Veteran's treating private physician and an April 2012 VA examiner, who are both competent to provide medical opinions, both diagnosed bilateral ankle ankylosis. However, the private physician (Dr. Rush) indicated in May 2014 that such diagnosis was made after recent X-rays revealed ankylosis; X-ray reports associated with the record do not note ankylosis in either ankle. Dr. Rush did not respond to multiple inquiries requesting identification of the X-rays showing ankylosis. The April 2012 VA examiner indicated that X-rays did not show ankylosis (and did note ranges of motion and that there was active motion of 4/5 strength); neither Dr. Rush nor the VA examiner pointed to other medical findings or symptoms to explain the diagnosis of ankylosis. Accordingly, these opinions are conclusory and cannot be afforded any substantial probative value. Notably, in finding that the Veteran did not have ankylosis (fixation) of either ankle, VA examiners cited to specific clinical findings and to their observations of the Veteran's functioning. The October 2014 VA examiner noted ranges of motion, that the drove to the hearing, and that (contrary to self- reports that he could only walk 20 feet) he walked with a cane from the parking lot of the examining room (a distance 5 times the length of the self-reported limit). The November 2015 examiner reported ranges of motion, and that the Veteran walked with a correct heel-to-toe stride. The January 2016 examiner noted ranges of motion (indicating in an August 2016 addendum that contrary to allegations by the Veteran, there was testing of ankle motion with a goniometer), and that testing after repetitive use did not reveal additional loss of function. Significantly, the Veteran was offered yet another examination, and declined. The December 2017 VA consulting provider, expressed familiarity with the entire record and opined there was no ankylosis in either ankle (chronic or acute). She explained that multiple VA examinations from 2001 to 2016 and X-ray reports from 1964 to 2015 showed no objective evidence of ankylosis. Comparing the conflicting opinions, the Board finds the opinions December 2017 indicating there is no ankylosis merit substantially more probative value than those without adequate explanation by the private physician and the April 2012 examiner. The Board has considered the Veteran's own assertions that his ankle disabilities are manifested by ankylosis. However, because he is a layperson, he is not competent to opine whether there is ankylosis in either ankle, as that is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). He does not point to clinical findings that support his statement, and the opinions he cites supporting that he has ankylosis, as noted above, are lacking in probative value. While the ankle disabilities have been manifested by marked limitation of motion, pain, and a limitation of function since April 2, 2012, the preponderance of the evidence is against a finding of ankylosis in either ankle. As the 20 percent rating assigned for each ankle is the maximum rating available based on limitation of motion, further DeLuca analysis is foreclosed (and the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply). See Johnston, 10 Vet. App. at 85. As noted, the other diagnostic codes for ankle disabilities-5272, 5273, and 5274-do not provide for ratings in excess of 20 percent and require pathology not shown here, and are not for application. Based on the foregoing, the Board concludes that the preponderance of the evidence is against a finding that either of the Veteran's left and right ankle disabilities warrants a rating in excess of 20 percent from April 2, 2012. The Veteran and his representative have not raised any other issues, nor are any other issues reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017). ORDER A rating for right ankle disability in excess of 20 percent from April 2, 2012 is denied. A rating for left ankle disability in excess of 20 percent from April 2, 2012 is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs