Citation Nr: 20073972 Decision Date: 11/18/20 Archive Date: 11/18/20 DOCKET NO. 18-07 420 DATE: November 18, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for left ankle lateral collateral ligament sprain is denied. Entitlement to an initial rating in excess of 20 percent for right ankle lateral collateral ligament sprain with laxity is denied. REMANDED Entitlement to service connection for a right hand/wrist disability is remanded. Entitlement to service connection for a left hand/wrist disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a gynecological disability, to include an ovarian cyst, is remanded. Entitlement to service connection for onychomycosis is remanded. FINDINGS OF FACT 1. The Veteran’s left ankle lateral collateral ligament sprain is manifested by no more than moderate limitation of motion. 2. The Veteran’s right ankle lateral collateral ligament sprain with laxity is manifested by marked limitation of motion. Her disability has not been shown to result in ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left ankle lateral collateral ligament sprain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for a rating in excess of 20 percent for right ankle lateral collateral ligament sprain with laxity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 2002 to June 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from February 2017 and April 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This matter was previously before the Board in November 2018 at which time the case was remanded for additional development. There has been substantial compliance with the Board’s November 2018 remand directives as far as the issues being decided below. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). In this regard, the Board directed in November 2018 that the Veteran be afforded a new VA examination for his service-connected ankle disabilities that satisfies the requirements set out under Correia v. McDonald, 28 Vet. App.158 (2016). This was accomplished by way of an October 2019 VA Disability Benefits Questionnaire (DBQ). Thereafter, in an August 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s noncompensable ratings for her right and left ankle disabilities to 20 and 10 percent, respectively, effective from the date of the grant of service connection. However, as higher ratings are available for those disabilities under VA’s Schedule for Rating Disabilities, and the Veteran is presumed to seek the maximum available benefit, the claims remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Left and Right Ankles Pertinent Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Limitation of motion of the ankle is rated under 38 C.F.R. § 4.71a, DC 5271. Under DC 5271, a 10 percent rating is warranted for moderate limitation of ankle motion and a 20 percent rating is warranted for marked limitation of ankle motion. 38 C.F.R. § 4.71a, DC 5271. The terms “moderate” and “marked” are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. The normal ranges of motion of the ankle are 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Pertinent Facts The Veteran was afforded a VA DBQ in October 2016 at which time she reported worsening ankles which over time have become weak and roll with minimal provocation. She also reported increased pain on flare-ups when the ankles roll. Range of motion testing in the right ankle revealed dorsiflexion to 20 degrees and plantar flexion to 30 degrees. Left ankle dorsiflexion was to 20 degrees and plantar flexion was to 35 degrees. No pain was noted with range of motion testing. However, the examiner reported that pain did significantly limit the Veteran’s functional ability in both ankles with repeated use over time and during flare ups, but he was unable to describe it in terms of range of motion. He explained that pain increases with flare ups limiting the Veteran’s tolerance for activities, but without change in range of motion. Additional findings show that muscle strength was 5/5 and there was no atrophy or ankylosis. Instability was noted in both ankles. Anterior drawer sign was negative for laxity. The examiner indicated that the Veteran had limited tolerance for running, prolonged standing and walking. He also noted that she did not use an assistive device as a normal mode of locomotion. X rays were not performed. The Veteran was afforded another VA DBQ in October 2019. She reported that her ankles had become worse and she experienced “popping”. She also reported that she had flare ups two times a week which were worse in the right ankle. She said that ice and heat alleviated her left ankle symptoms, but not her right ankle symptoms. In regard to her right ankle symptoms, she said that she has just learned to “live with the pain”. Right and left ankle dorsiflexion was 0 to 10 degrees and plantar flexion was 0 to 45 degrees. Functional ability was decreased on repeated use over time and during flareups in the right ankle due to pain, but there was no functional loss in the left ankle due to factors such as pain, weakness, fatiguability or incoordination. The additional decrease in range of motion due to pain in the right ankle was assessed as 0 to 0 degrees on dorsiflexion. There was no additional decrease in rating of motion of the right ankle on plantar flexion. Ankle x-rays were negative. The Veteran was noted to have right ankle instability. She was also noted to have a negative anterior drawer test and no laxity in the right and left ankles. Additional findings revealed no ankylosis and no assistive devices as a normal mode of locomotion. VA treatment records for the pertinent appeal period do not contain complaints or findings related to the right or left ankles. Discussion Left Ankle The Veteran is in receipt of an initial 10 percent rating for her left ankle disability for limitation of motion under Code 5271 that is moderate in degree. 38 C.F.R. § 4.71a. After considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds that her service-connected left ankle lateral collateral ligament sprain does not meet the criteria for an initial higher rating of 20 percent for marked limitation of motion. As noted, the Veteran demonstrated full dorsiflexion to 20 degrees at the October 2016 DBQ and limited dorsiflexion to 10 degrees at the October 2019 DBQ. She demonstrated limited ankle plantar flexion to 35 degrees at the October 2016 DBQ and full plantar flexion to 45 degrees at the October 2019 DBQ. These findings do not more closely approximate marked limitation of left ankle motion. Although pain was noted at the October 2016 DBQ to significantly limit functional ability in the Veteran’s ankles on repeated use and during flare-ups, the examiner was unable to describe it in terms of additional degrees of limited motion. Rather he explained that during flare ups it limited the Veteran’s tolerance for activities, but without change in range of motion. Moreover, the October 2019 DBQ examiner found that there was no functional loss in the Veteran’s left ankle in terms of factors such as pain, weakness, fatigability or incoordination. Accordingly, the Board finds that the evidence does not more closely approximate marked limitation of motion in the left ankle even after considering functional loss due to pain. The Board has also considered whether an increased disability rating may be assigned under alternative DCs pertaining to disability of the ankle. DC 5270 and 5272 apply to disabilities involving diagnosis of ankylosis. DC 5273 applies to calcis or astragalus and DC 5274 applies to astragalectomy. As these conditions are not shown or alleged, DCs 5270, 5272, 5773 and 5274 do not apply in this matter. As the preponderance of the evidence is against the claim for an initial rating in excess of 10 percent for left ankle lateral collateral ligament sprain at any point during the duration of the appeal, the doctrine of reasonable doubt does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Ankle The Veteran’s 20 percent rating for her right ankle disability is the maximum schedular rating based on range of motion and has been in effect since the date of the grant of service connection. A higher rating requires ankylosis, which the Veteran is not shown to have. In this regard, both the October 2016 and the October 2019 DBQ examiners noted that the Veteran did not have right ankle ankylosis. Additionally, as the 20 percent rating for the Veteran’s right ankle disability is the highest schedular rating for limitation of motion, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Accordingly, the Board finds that an initial rating in excess of 20 percent for right ankle lateral collateral ligament sprain with laxity is not warranted at any point during the duration of the appeal. As the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND In November 2018, the Board remanded the Veteran’s claims for service connection for onychomycosis and for disabilities of the low back and right and left hands/wrists, due to missing service treatment records. In this regard, the Board noted that a review of the record revealed that the AOJ had not obtained a complete copy of the Veteran’s service treatment records. More specifically, the Veteran’s service treatment records are predominantly dated in the Veteran’s first year of service in 2002, with no records in 2005 and 2006, including no separation records. The Board further noted in November 2018 that the RO had not drafted a formal finding of unavailability for the record, and did not indicate that all efforts to obtain the missing records had been exhausted and that additional attempts would be futile. 38 C.F.R.§ 3.159 (e). The Board went on to direct the AOJ to request from the National Personnel Record Center, or other appropriate source, the Veteran’s complete official military personnel file (OMPF) and service treatment records to determine whether any additional service records were available. The Board further directed that if any requested records were deemed unavailable, the AOJ should annotate the record to reflect the missing records and the Veteran should be notified in accordance with 38 C.F.R.§3.159 (e). This latter directive has not been accomplished. While the AOJ did request and obtain the Veteran’s OMPF, the only service treatment records that it received was a duplicate May 2002 examination report and a duplicate May 2002 Report of Medical History. Thus, in consideration of the absence of an annotation in the claims file of missing records and notice to the Veteran of same, a remand is required to ensure fulfillment of the Veteran’s due process rights and to ensure compliance with the Board’s November 2018 remand directives. See 38 C.F.R.§3.159 (e); Stegall v. West, 11 Vet. App. 268 (1998). Lastly, the Board notes that the issue of entitlement to service connection for a gynecological disability, to include an ovarian cyst, was remanded for the purpose of affording the Veteran a VA examination. Such an examination was performed in October 2019. However, as the development being sought below with respect to missing service treatment records could have a significant impact on this claim, it is deferred pending completion of the requested development. The matters are REMANDED for the following action: 1. After ensuring that all attempts to obtain missing service treatment records from available sources have been made and that additional attempts would be futile, the record should be annotated to reflect such, and the Veteran notified in accordance with 38C.F.R. §3.159 (e). 2. Thereafter, readjudicate the issues that remain on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, 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.