Citation Nr: 1827331	
Decision Date: 05/02/18    Archive Date: 05/14/18

DOCKET NO.  10-01 114	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to an increased rating in excess of 30 percent for residuals of an injury to the right first proximal interphalangeal (PIP) joint, with degenerative joint disease (DJD) of the right foot.

2. Entitlement to an initial rating in excess of 20 percent for posttraumatic arthritis of the right ankle.

3. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected right ankle and right foot disabilities.

4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Veteran represented by:	Michael R. Viterna, Esq.

ATTORNEY FOR THE BOARD

C. J. Cho, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from February 1981 to February 1985 and June 1985 to December 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated January 2008 and March 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

The Board notes that this case was remanded previously in April 2013 and November 2016.

The Board acknowledges receipt of a March 2017 correspondence from the Veteran's attorney, Michael R. Viterna, purporting to withdraw services as the Veteran's representative.  Because the attorney's March 2017 request to withdraw representation was received after the appeal was certified to the Board, the attorney is under obligation to submit a proper motion to withdraw from VA representation in accordance with 38 C.F.R. § 20.608.  While the attorney stated in his letter his reason for wanting to withdraw his representation of the Veteran, and also apparently sent a carbon copy of the letter to the Veteran, the attorney did not include a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the Veteran, setting forth the address to which the copy was mailed, and he further did not file the motion with the Office of the Principal Deputy Vice Chairman.  See 38 C.F.R. § 20.608.  As such, there has not been sufficient compliance with the provisions of 38 C.F.R. § 20.608 (b), and withdrawal of representation is not accepted as valid.  Accordingly, Michael R. Viterna is deemed to still be the Veteran's representative.

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, 369-7 (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).

The issue of entitlement to TDIU is being REMANDED and is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

1. The Veteran failed to report for his April 2017 VA examinations and there is no good cause for his failure to report.

2. The Veteran's right ankle disability was manifested by complaints of pain on use resulting in marked limited motion.  Anklylosis of the right ankle was not shown.

3. The Veteran's right knee disability is at least as likely as not caused by his service-connected ankle disability.


CONCLUSIONS OF LAW

1. Entitlement to an increased rating in excess of 30 percent for residuals of an injury to the right first proximal interphalangeal (PIP) joint, with degenerative joint disease (DJD) of the right foot, is denied as a matter of law.  38 C.F.R. § 3.655 (2017).  

2. The criteria for an initial rating in excess of 20 percent for posttraumatic arthritis of the right ankle have not been met.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5271 (2017).

3.  The criteria for service connection on a secondary basis for a right knee disability are met.  38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Rating

Right Foot Disability

First, the Veteran's claim for entitlement to an increased rating in excess of 30 percent for residuals of an injury to the right first proximal interphalangeal (PIP) joint, with degenerative joint disease (DJD) of the right foot, is denied as a matter of law under 38 C.F.R. § 3.655.  

VA regulations provide that when entitlement to a benefit cannot be established without a current VA examination or reexamination, and the claimant, without good cause, fails to report for such examination, where the claim being appealed is a claim for an increased rating, the increased rating claim must be denied.  38 C.F.R. § 3.655(a) and (b) (2017).  "Examples of good cause [that would excuse the failure to report for a scheduled VA examination or reexamination] include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc."  38 C.F.R. § 3.655(a).

Here, in November 2016, the Board remanded the increased rating claim for a new VA examination that complies with the requirements set forth in Correia v. McDonald.  28 Vet. App. 158 (2016); see November 2016 Board remand.  The new VA examination was scheduled to take place in April 2017.  

Unfortunately, the Veteran refused to report to the April 2017 VA examination.  Moreover, nothing in the evidence of record suggests "good cause" within the meaning of 38 C.F.R. § 3.655 for the Veteran's failure to report for his examination.  The only reason given for the Veteran's failure to report is found in the April 2017 VA Report of General Information, which reports that in regards to the Veteran cancelling the examinations, the Veteran had stated: "I am out of state right now but I wouldn't worry about this.  I'm not going to follow through on that claim."  

VA subsequently sent a letter requesting further clarification of his April 2017 statement to VA; however, to date, the Veteran has not responded to the clarification request.

Furthermore, the Veteran had been explicitly advised in an April 2017 letter that his failure to report for any scheduled examination may result in the denial of his claims.

Thus, based on the foregoing, the Veteran's claim for entitlement to an increased rating in excess of 30 percent for residuals of an injury to the right first proximal interphalangeal (PIP) joint, with degenerative joint disease (DJD) of the right foot, is denied as a matter of law under 38 C.F.R. § 3.655.  


Initial Rating

Right Ankle Disability

Next, the Veteran seeks an initial rating in excess of 20 percent for posttraumatic arthritis of the right ankle.

As an initial matter, the Board notes that in November 2016, the Board remanded this claim as well to obtain a new VA examination that complies with the requirements set forth in Correia v. McDonald.  28 Vet. App. 158 (2016); see November 2016 Board remand.  The Veteran was scheduled for a VA examination in connection with this claim in April 2017.  However, the Veteran did not appear at his scheduled examination and did not provide good cause for his absence.  See April 2017 VA Report of General Information (reporting that the Veteran had stated: "I am out of state right now but I wouldn't worry about this.  I'm not going to follow through on that claim.").

VA regulations provide that when entitlement to a benefit cannot be established without a current VA examination or reexamination, and the claimant, without good cause, fails to report for such examination, where the claim being appealed is an original compensation claim, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(a) and (b) (2017).  Therefore, the Board will adjudicate the claim for entitlement to an initial rating in excess of 20 percent for posttraumatic arthritis of the right ankle, based on the evidence of record.  See 38 C.F.R. § 3.655 (a), (b); see also Turk v. Peake, 21 Vet. App. 565, 570 (2008).

Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity.  38 U.S.C. § 1155 (West 2012).  Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities.  The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  38 C.F.R. § 4.21.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 3.102, 4.3.

Here, the Veteran is appealing the original assignment of a disability evaluation following the award of service connection.  Thus, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Veteran's right ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  The additional code is shown after a hyphen.  38 C.F.R. § 4.27 (2017).  The hyphenated diagnostic code in this case indicates that traumatic arthritis under Diagnostic Code 5010 is the service-connected disability and that limited motion of the ankle under Diagnostic Code 5271 is the residual disability.

Diagnostic Code 5271 provides for a 10 percent rating for moderate limitation of motion and a maximum schedular rating of 20 percent for marked limitation of motion.  Words such as "slight," "moderate," "marked," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule.  

Private medical treatment records received in December 2008 from Dr. W. show the Veteran has reported feeling substantial pain due to his ankle.  Dr. W. provided that APLO views of the right ankle revealed evidence of a previous bimalleolar fracture/ORIF with medial screws, that the mortise remained somewhat intact, and that there were noticeable degenerative changes in the ankle.  

VA medical records for the entire period on appeal show osteoarthritis in the right ankle and the Veteran's reports of pain and instability with motion in the right ankle.  The records also do not show ankylosis of the ankle, subtalar and/or tarsal joint.  

The Veteran underwent a VA examination for his right ankle in January 2005.  Dorsiflexion was to 20 degrees and plantarflexion was to 35 degrees.  The examiner found the disability caused decreased mobility and pain for the Veteran.  The examiner found that the effects of the problem on chores was mild; shopping, mild; exercise, mild; sports, severe; recreation, mild; traveling, mild; feeding, none; bathing, none; dressing, none; toileting, none; grooming, none.  The examiner found no ankle instability, no loss of a bone or part of a bone, no inflammatory arthritis, and no joint ankylosis.  

The Veteran underwent another VA examination in November 2006.  The examiner found range of motion of the right ankle active plantar flexion is 0 to 25 degrees with pain from 0 degrees to 35 degrees.  Active dorsiflexion is 0 degrees to 0 degrees with pain beginning at 0 degrees and ending at 0 degrees.  X-rays of the ankle showed findings by the lateral malleolar region that could be posttraumatic arthritis.  The examiner diagnosed the Veteran with posttraumatic arthritis in the right ankle.

The Veteran underwent another VA examination in March 2010.  The Veteran reported that he was having constant pain in his right ankle and that the ankle is starting to come out of the socket and is very painful to get the ankle back to where it was.  He reported that due to his ankle, he can only walk 20 yards before he has to stop, and that he has a hard time sitting as he has to adjust his foot and ankle.  He reported that sometimes the pain is so bad that he cannot move.  The examiner noted instability, pain, stiffness, weakness, incoordination, no dislocation or subluxation episodes, but locking episodes 4-5 times per week.  The examiner also noted severe flare-ups of the ankle, 4-5 times weekly.  The examiner found no constitutional symptoms or incapacitating episodes of arthritis.  The examiner found no ankle instability, no loss of a bone or part of a bone, no inflammatory arthritis, and no joint ankylosis.  

The Veteran underwent another VA examination in September 2014.  The examiner confirmed the posttraumatic arthritis in the right ankle diagnosis.  The Veteran reported that he has pain in the ankle that will range from a 5-6 out of 10 to a 10 out of 10.  He further reported that on the 10 out of 10 days, he cannot do anything until the pain goes away.  He reported flare-ups that affect his daily activities, including driving.  The examiner found plantar flexion ends at 30 degrees and dorsiflexion ends at 12 degrees.  The examiner noted no objective evidence of painful motion as to plantar flexion and dorsiflexion.  The examiner found functional loss due to the impairment of the ankle, including less movement than normal, disturbances of locomotion, and pain.  The examiner found no ankylosis of the ankle, subtalar and/or tarsal joint.  The examiner found that the Veteran's ankle condition impacts the Veteran's ability to work, as the Veteran would not be able to drive commercially and would need to have as sedentary job.  

A VA medical addendum opinion to the September 2014 VA examination was provided in February 2015.  In this opinion, the examiner opined that based on exam and radiographic findings and the Veteran's statements, the Veteran's manifestations of his right ankle and foot are described as moderate.

Based on the above, the Board finds that an initial 20-percent rating is warranted for the entire period on appeal.  There is evidence of significant functional impairment of the right ankle throughout the period on appeal.  In January 2005, the examiner found the disability caused decreased mobility and pain for the Veteran.  In March 2010, the examiner noted severe flare-ups of the ankle, 4-5 times weekly.  In September 2014, the examiner found functional loss due to the impairment of the ankle, including less movement than normal, disturbances of locomotion, and pain.  Accordingly, the Board finds that while there is some question as to whether the right ankle should be considered moderate or marked, the evidence more nearly approximates marked limited motion.  38 C.F.R. § 4.7.

At no time during the period on appeal is a rating in excess of 20 percent warranted.  None of the VA examinations or VA medical records or private treatment records demonstrated ankylosis, malunion of os calcis or astragalus, and astragalectomy.  The Board also considered the Veteran's lay statements regarding the functional impact of his service-connected right ankle disability, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), and these statements have supported the award herein.  To the extent that the Veteran argues his symptomatology approximates symptoms warranting a rating in excess of 20 percent such as ankylosis, malunion of os calcis or astragalus, and astragalectomy, his statements must be weighed against the other evidence of record, and are outweighed by the examination findings of trained health care professionals.  The evidence demonstrates that he complained of lost motion, increased right ankle pain, and right ankle instability, but that there was no evidence of ankylosis and examination found ranges of ankle motion that indicated the absence of ankylosis.  Based upon the evidence of record, the Board finds that the evidence shows that the Veteran's right ankle disability was manifested by no more than marked limited ankle motion and that the maximum schedular rating based upon loss of motion was assigned.  Therefore the Board finds that the right ankle disability most nearly approximates a rating of 20 percent under Diagnostic Code 5010-5271.  Further, because the right ankle disability has been assigned the maximum rating based on limitation of motion, the DeLuca v. Brown criteria are not applicable.  See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also 38 C.F.R. §§ 4.40, 4.45, 4.59; 8 Vet. App. 202, 206-07 (1995).

There is also no indication that any higher or alternative ratings are warranted based upon other rating criteria.  In fact, any higher ratings assigned to the Veteran's right ankle or right foot is prohibited.  The Veteran is in receipt of a 30-percent evaluation for a right foot disability.  The combined rating for both the right ankle and right foot disabilities is 40 percent, and 40 percent is the maximum rating that may be assessed for a disability below the knee per the amputation rule.  38 C.F.R. § 4.68 (2017).  Therefore, the Veteran's claim for a rating in excess of 20 percent for a right ankle disability must be denied.

The Board finds that the preponderance of the evidence is against the assignment of any higher rating and the claim for increased rating is denied.  38 U.S.C. § 5107(b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Service Connection

Right Knee Disability

The Veteran seeks service connection for a right knee disability, to include as secondary to the service-connected right ankle and right foot disabilities.  For the following reasons, his claim is granted.

As an initial matter, the Board notes that in November 2016, the Board remanded this claim as well to obtain a new secondary service connection etiology opinion.   The Veteran was scheduled for a VA examination in connection with this claim in April 2017.  However, the Veteran did not appear at his scheduled examination and did not provide good cause for his absence.  See April 2017 VA Report of General Information (reporting that the Veteran had stated: "I am out of state right now but I wouldn't worry about this.  I'm not going to follow through on that claim.").

VA regulations provide that when entitlement to a benefit cannot be established without a current VA examination or reexamination, and the claimant, without good cause, fails to report for such examination, where the claim being appealed is an original compensation claim, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(a) & (b) (2017).  Therefore, the Board will adjudicate the claim for entitlement to service connection for a right knee disability, to include as secondary to the service-connected right ankle and right foot disabilities, based on the evidence of record.  See 38 C.F.R. §  3.655 (a), (b); see also Turk, 21 Vet. App. at 570.

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013).

In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.310 (2017).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. §  5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Here, the Board finds that the Veteran has a current diagnosis of a right knee disability.  See, e.g., February 2009 private medical opinion from physical therapist, G.M.  Therefore, the current diagnosis requirement is met.  

The second element on the issue of entitlement to secondary service connection is also met, as the Veteran is service-connected for an ankle disability.  See, e.g., July 2010 Rating Decision Codesheet.  

Finally, the nexus element is met, as the Board finds that the Veteran's right knee disability is caused by his service-connected ankle disability.  

First, the Board acknowledges that the record contains an unfavorable VA nexus opinion and addendum opinion dated February 2009.  However, this opinion is inadequate based on the reasons already given in the November 2016 Board Remand.  Furthermore, the Board additionally finds the opinion inadequate because the February 2009 VA examiner used the wrong standard of proof when he concluded that the Veteran's right knee condition "is not caused by or a result of service connected right ankle condition."  

The general standard of proof in Veteran's benefits cases is "at least as likely or not," not "is or is not" caused by, which is what the February 2009 VA examiner used.  "By requiring only an 'approximate balance of positive and negative evidence' . . ., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."  Wise v. Shinseki, 26 Vet. App. 517, 530-31 (2014).  Thus, here, the examiner's use of an incorrect standard of proof makes it impossible for the Board to determine if that equates to a less than a 50 percent probability.  

On the other hand, the Board finds persuasive the February 2009 private medical opinion from physical therapist, G. M., who concluded:  "In my opinion, it is very likely that secondary to having to accommodate and compensate for his ankle injuries [the Veteran] has developed knee problems secondary to this over the years."  February 2009 private medical opinion from physical therapist, G.M.

Physical therapist, G. M, performed an in-person physical examination of the Veteran and considered his lay statements regarding the observable symptoms related to his knee disability that he credibly provided.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Based on the foregoing, the Board finds the opinion to be sufficient and entitled to probative weight.  

Hence, after resolving reasonable doubt in the Veteran's favor, the Board finds that the February 2009 private medical opinion from physical therapist, G. M. supports the finding that the Veteran's knee disability is at least as likely as not caused by his service-connected ankle disability, at least to an evidentiary position of equipoise.  See 38 C.F.R. § 3.307, 4.124a; see also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49.

In addition, there is no adequate negative nexus opinion of record.

Therefore, entitlement to service connection for a knee disability, to include as secondary to a service-connected ankle disability, is granted.


ORDER

Entitlement to an increased rating in excess of 30 percent for residuals of an injury to the right first proximal interphalangeal (PIP) joint, with degenerative joint disease (DJD) of the right foot, is denied.  

Entitlement to an initial rating in excess of 20 percent for posttraumatic arthritis of the right ankle is denied.

Entitlement to service connection for a knee disability, to include as secondary to a service-connected ankle disability, is granted.

REMAND

Finally, as to the issue of entitlement to TDIU, the Board finds the TDIU issue inextricably intertwined with the aforementioned grant of service connection for entitlement to service connection for a right knee disability, to include as secondary to the service-connected right ankle and right foot disabilities, as the criteria for TDIU are dependent, in part, on the Veteran's service-connected disability ratings.  Accordingly, the Board will remand the issue of entitlement to a TDIU at this time.

Accordingly, the case is REMANDED for the following action:

1. Readjudicate the Veteran's claim for TDIU based on this Board's decision to grant entitlement to service connection for a right knee disability, to include as secondary to the service-connected right ankle and right foot disabilities.  If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the entire appeal must be returned to the Board for appellate review


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. §§ 5109B, 7112 (West 2012).




______________________________________________
YVETTE R. WHITE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs