Citation Nr: 20073528 Decision Date: 11/17/20 Archive Date: 11/17/20 DOCKET NO. 14-15 502A DATE: November 17, 2020 ORDER Entitlement to a 20 percent rating, but not higher, prior to May 25, 2018, for right ankle degenerative joint disease is granted. REMANDED Entitlement to a rating in excess of 40 percent for right lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation based on the loss of use of both lower extremities is remanded. Entitlement to special monthly compensation based on the need for regular aid and attendance or at the housebound rate is remanded. Entitlement to an effective date prior to February 20, 2008, for basic eligibility to Department of Veterans Affairs (VA) Dependents’ Educational Assistance benefits is remanded. FINDING OF FACT Prior to May 25, 2018, a service-connected right ankle disability was shown to be productive of subjective complaints of right ankle pain, weakness, and giving way; use of a right ankle brace; an antalgic gait; functional limitation of motion of dorsiflexion of 0 to 10 degrees due to pain and plantar flexion of 0 to 25 degrees due to pain; pain with repetitive motion of the joint; crepitus; joint tenderness; pain at rest; guarding of movement; and X ray findings of right ankle degenerative changes and two loose bodies inferior to the medial malleolus. CONCLUSION OF LAW The criteria for a 20 percent rating, but not higher, prior to May 25, 2018, for right ankle degenerative joint disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7. 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1975 to February 1979. In February 2016, the Board of Veterans’ Appeals (Board) denied an initial rating in excess of 10 percent for right ankle degenerative joint disease. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In May 2017, the United States Court of Appeals for Veterans Claims vacated that portion of the February 2016 Board decision which denied a rating in excess of 10 percent for right ankle degenerative joint disease prior to May 25, 2018, and remanded that issue to the Board for further action consistent with its decision. In March 2019, the Agency of Original Jurisdiction increased the rating for the right ankle disability from 10 to 30 percent, effective May 25, 2018. In May 2019, the Board denied a rating in excess of 10 percent prior to May 25, 2018, and in excess of 30 percent as of May 25, 2018, for a service-connected right ankle disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In May 2020, the United States Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand; vacated that portion of the May 2019 Board decision which denied a rating in excess of 10 percent prior to May 25, 2018, for the right ankle degenerative joint disease; and remanded that issue to the Board for additional action consistent with the Joint Motion for Partial Remand. Right Ankle Disability Prior to May 25, 2018 The Veteran asserts that a service-connected right ankle disability prior to May 25, 2018, was productive of marked impairment warranting a 20 percent rating. Disability ratings are determined by comparing the Veteran’s symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Degenerative arthritis established by X ray findings will be evaluated on the basis of limitation of motion of the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each major joint or group of minor joints affected by the limitation of motion. The 10 percent ratings are combined and not added. In the absence of limitation of motion, a 10 percent rating will be assigned where there is X ray evidence of the involvement of two or more major joints or two or more minor joint groups. A 20 percent rating will be assigned where there is X ray evidence of the involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R.§ 4.71a, Diagnostic Code 5003. Moderate limitation of motion of either ankle warrants a 10 percent rating. A 20 percent rating requires marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The average normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71. A 20 percent rating is warranted for ankylosis of the ankle in plantar flexion at a point less than 30 degrees. A 30 percent rating is warranted for ankylosis where plantar flexion is fixed between 30 and 40 degrees or dorsiflexion is fixed between 0 and 10 degrees. A 40 percent rating is warranted where plantar flexion is fixed at more than 40 degrees, or where dorsiflexion is fixed at more than 10 degrees with abduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. A 10 percent rating is warranted for moderate limitation of ankle motion. A 20 percent rating is warranted for marked limitation of ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Where there is a question as to which of two disability ratings shall be applied, 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The report of an April 2004 VA examination states that the Veteran complained of intermittent right ankle pain, weakness, stiffness, swelling, locking, and instability. The Veteran was noted to have undergone two right ankle surgical procedures. On examination of the right ankle, the Veteran exhibited a right sided limp; dorsiflexion of 0 to 10 degrees with pain and plantar flexion of 0 to 45 degrees; and ligamental instability. Contemporaneous X ray studies of the right ankle showed minimal degenerative joint disease. The report of an October 2008 VA ankle examination shows that the Veteran complained of recurrent right ankle pain, weakness, and giving way. He reported several falls due to the right ankle giving way and the use of a right ankle brace. On examination of the right ankle, the Veteran exhibited an antalgic gait; an active range of motion of dorsiflexion of 0 to 2 degrees with pain and plantar flexion of 0 to 30 degrees with pain; a passive range of motion of 0 to 15 degrees with pain and plantar flexion of 0 to 40 degrees with pain; joint tenderness; guarding of movement; and no joint instability. The report of a June 2011 VA ankle examination states that the Veteran complained of progressive right ankle pain and stiffness. On examination, the Veteran exhibited an antalgic gait; dorsiflexion of 0 to 10 degrees with pain and plantar flexion of 0 to 25 degrees; pain with repetitive motion of the joint; crepitus; joint tenderness; pain at rest; and guarding of movement. Contemporaneous X ray studies of the right ankle revealed mild degenerative changes and two loose bodies inferior to the medial malleolus. The examiner commented that the right ankle disability significantly affected the Veteran’s employment due to decreased mobility, problems lifting and carrying, and difficulty reaching; mildly impacted his ability to drive and to bath; moderately impacted his ability to do chores and to shop; and severely impacted his ability to exercise and to play sports. The report of a February 2014 VA ankle examination states that the Veteran complained of progressive right ankle pain and limitation of motion. He reported that the right ankle “turns easily.” He stated that he wore a right ankle brace when he ambulated and was unable to work due to his right ankle and lumbar spine disabilities. The Veteran was noted to have undergone a December 1985 right ankle ganglion cyst removal and repair and a 1986 right ankle ligamental repair and ganglion cyst removal. On examination of the right ankle, the Veteran exhibited a range of motion plantar flexion of 0 to 35 degrees with pain at 35 degrees and dorsiflexion of 0 to 15 degrees with pain at 15 degrees; tenderness to palpation of the ankle; and no joint laxity; and no ankylosis. Contemporaneous X ray studies of the right ankle revealed degenerative arthritis. The Veteran was diagnosed with “right ankle strain with residuals” and degenerative changes. In a September 2014 Veterans Application for Increased Compensation Based on Unemployability, VA Form 21-8940, the Veteran stated that his treating VA physician told him that he could not work due to the right ankle instability. A December 2017 written statement from the Veteran’s mother in law states that she lived with the Veteran. She observed that the Veteran experienced significant right ankle pain and “loses his balance because of his ankle.” Prior to May 25, 2018, the service-connected right ankle disability was shown to be productive of subjective complaints of recurrent right ankle pain, weakness, and giving way; use of a right ankle brace; an antalgic gait; functional limitation of motion of dorsiflexion of 0 to 10 degrees due to pain and plantar flexion of 0 to 25 degrees due to pain; pain with repetitive motion of the joint; crepitus; joint tenderness; pain at rest; guarding of movement; and X ray findings of right ankle degenerative changes and two loose bodies inferior to the medial malleolus. The Board finds that those symptoms most closely approximate marked functional limitation of motion of the right ankle. In the absence of subjective or objective findings of ankle ankylosis during the relevant period, the Board finds that a 20 percent rating, but not higher, prior to May 25, 2018, is warranted for the right ankle disability. 38 U.S.C. §5107; 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Code 5271. The preponderance of the evidence is against the assignment of any higher rating as ankylosis is not shown prior to May 25, 2018. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for right lower extremity radiculopathy; a rating in excess of 20 percent for left lower extremity radiculopathy; and special monthly compensation based on the loss of use of both lower extremities is remanded. The Veteran asserts that increased ratings for right and left lower extremity radiculopathy and special monthly compensation based on the loss of use of both lower extremities is warranted as the service-connected lower extremity disabilities are productive of significant impairment; he is able to walk only approximately one quarter of a block; uses a cane to walk; has been issued a wheelchair by VA; and has been issued handicapped license plates. Entitlement to special monthly compensation based on the loss of use of a lower extremity is warranted when the lower extremity disability is such that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a), 4.63. The Veteran was last provided a VA examination which addressed the right lower extremity radiculopathy and left lower extremity radiculopathy in December 2017. The VA examination report states that the Veteran was diagnosed with right lower extremity radiculopathy with moderately severe incomplete paralysis of the right sciatic nerve. No left lower extremity neurological impairment was noted. The VA nurse practitioner stated that the Veteran “uses a cane constantly outside of the home and he uses a wheelchair at home.” The report of a December 2019 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, VA Form 21-2680, states that the Veteran exhibited “normal” lower extremity strength and sensation. The VA examiner commented that, while the Veteran reported that he “intermittently uses cane, but not using today,” he did not need “aids such as canes, braces, crutches, or the assistance of another person” for locomotion. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the conflicting statements and findings of record as to the service-connected lower extremity disabilities and any associated functional loss of use, the Board finds that further VA evaluation is needed. Clinical documentation dated after June 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to TDIU; special monthly compensation based on the need for regular aid and attendance or at the housebound rate; and an effective date prior to February 20, 2008, for basic eligibility to VA Dependents’ Educational Assistance benefits is remanded. Initially, the Board observes that a combined 100 percent schedular rating has been in effect from February 20, 2008. The receipt of a combined 100 percent schedular rating does not make the issue of entitlement to a TDIU moot where the award of a TDIU based on a single disability may result in the Veteran being eligible for higher levels of compensation, specifically special monthly compensation based on the need for regular aid and attendance or at the housebound rate under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). The issues of entitlement to TDIU; special monthly compensation based on the need for regular aid and attendance or at the housebound rate; and an effective date prior to February 20, 2008, for basic eligibility to VA Dependents’ Educational Assistance benefits are inextricably intertwined with the issues being remanded and must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who treated him for the service-connected right lower extremity radiculopathy and left lower extremity radiculopathy. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Associate with the record any VA medical records for treatment provided since June 2020 not already of record. 3. Schedule the Veteran for a VA examination conducted by a medical doctor to assist in determining the current severity of service-connected right and left lower extremity radiculopathy and associated lower extremity functional impairment. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Describe the right and left lower extremity neurologic disabilities, the nerves affected, and the level of impairment. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has loss of use of either lower extremity due to service-connected disability. (c) The examiner should opine as to the impact of the right lower extremity radiculopathy and the left lower extremity radiculopathy on the Veteran’s vocational pursuits. (d) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the combined effects of the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.