Citation Nr: 20011270 Decision Date: 02/11/20 Archive Date: 02/11/20 DOCKET NO. 18-47 388 DATE: February 11, 2020 ORDER Petition to reopen entitlement to service connection for a left ankle disability is granted. Petition to reopen entitlement to service connection for a right ankle disability is granted. Entitlement to an initial disability rating in excess of 10 percent for service-connected fracture right distal fibula with residual of right ankle impairment of pain (hereafter, referred to as residuals post right fibula fracture) is denied. REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for right ankle disability is remanded. FINDINGS OF FACT 1. The Veteran’s claims seeking entitlement to service connection for left and right ankle disabilities were last denied in a final September 2014 rating decision. 2. Evidence received since the final September 2014 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claims seeking entitlement to service connection for left and right ankle disabilities. 3. For the entire appellate period, the Veteran’s residuals post right fibula fracture has been most closely approximated by malunion of the fibula resulting in slight ankle disability. CONCLUSIONS OF LAW 1. The September 2014 rating decision denying the Veteran’s claim of entitlement to service connection for left and right ankle disabilities is final. 38 U.S.C. § 7104 (2018); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence sufficient to reopen the Veteran’s claims seeking entitlement to service connection for left and right ankle disabilities has been received; the claims are reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2018). 3. The criteria for an initial disability rating in excess of 10 percent for service-connected residuals post right fibula fracture have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to September 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2017 and August 2018 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the October 2018 VA form 9, Substantive Appeal, the Veteran declined an optional Board hearing. The undersigned Veterans Law Judge has been assigned to adjudicate this appeal pursuant to 38 C.F.R. § 19.3(a) (2018). In correspondence received in January 2020, the Veteran waived initial RO consideration of all evidence received since the August 2018 Statement of the Case. 38 C.F.R. § 20.1304(c) (2018). Accordingly, appellate review may proceed. New and Material Evidence – Bilateral Ankle Disabilities The preliminary issue for resolution before the Board is whether new and material evidence has been received sufficient to reopen the Veteran’s previously denied claims seeking entitlement to service connection for left and right ankle disabilities. In the August 2018 Statement of the Case, the RO identified a December 2001 rating decision as the last final rating decision adjudicating left and right ankle service connection claims; however, the Board’s review of the record finds this statement to be incorrect, as the evidence shows that the Veteran was last denied entitlement to service connection for left and right ankle disabilities in a September 2014 rating decision, which has become final. The September 2014 rating decision, in pertinent part, denied entitlement to service connection for bilateral ankle conditions, and the Veteran did not file a Notice of Disagreement or new and material evidence within one year from the date that that RO mailed notification of the rating decision to the Veteran. 38 C.F.R. §§ 3.156, 20.201, 20.302 (2018). Consequently, the September 2014 rating decision became final. 38 C.F.R. § 20.1103 (2018). The Board has also considered the application of 38 C.F.R. § 3.156(c) (2018); however, any service department records that were associated with the Veteran’s electronic claims file after the final September 2014 rating decision, but in existence prior to that time, were either duplicative/redundant of evidence in the claims file at the time of the September 2014 rating decision or are not relevant to this appeal. The Veteran has primarily resubmitted service treatment records that were of record and considered at the time of the September 2014 rating decision. Moreover, the Veteran’s representative has not identified any evidence that would warrant reconsideration under 38 C.F.R. § 3.156(c) (2018). Thus, the Veteran’s claims shall not be reconsidered under 38 C.F.R. § 3.156(c) (2018), and the Board shall continue its new and material evidence analysis in accordance with 38 C.F.R. § 3.156(a) (2018). In order to reopen a claim which has been denied by a final decision, the Veteran must present new and material evidence. 38 U.S.C. § 5108 (2018). New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a veteran submit medical nexus evidence when he has provided new and material evidence as to another missing element). In the September 2014 rating decision, the Veteran was denied entitlement to service connection for bilateral ankle conditions because the evidence failed to establish that the Veteran’s bilateral ankle conditions were etiologically related to his active duty service. Since that time, VA has received several medical nexus opinions addressing whether an etiological relationship exists between the Veteran’s current left and right ankle disabilities and injuries sustained during his active duty service. See e.g., April 2015 private medical opinion, December 2016 and February 2017 VA medical nexus opinions. This evidence is new, as it was not previously available (and thereby considered) in the prior final rating decision, and it is material, as it pertains to the unestablished fact of whether the Veteran’s current left and right ankle disabilities were incurred in or are otherwise etiologically related to his active duty service. The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence, and the claims are reopened. Shade, 24 Vet. App. at 117-118. However, the Board cannot, at this point, adjudicate the reopened claims, as further development is necessary. This is detailed in the Reasons for Remand section below. Increased Rating Claim – Residuals Post Right Fibula Fracture In a March 2017 rating decision, the Veteran was originally assigned a noncompensable disability rating for his service-connected residuals post right fibula fracture, effective August 18, 2015, under Diagnostic Code 5262, 38 C.F.R. § 4.71a (2018). He challenged the initial disability rating assigned, and while on appeal, the RO issued an August 2018 Statement of the Case, and an August 2018 implementing rating decision, which granted an increased rating of 10 percent for his service-connected residuals post right fibula fracture under Diagnostic Code 5262, 38 C.F.R. § 4.71a (2018) for the entire appellate period. See August 2018 rating decision. He seeks a higher initial disability rating. Impairment of the tibia and fibula is evaluated as follows: nonunion with loose motion, requiring a brace (40 percent); malunion with marked knee or ankle disability (30 percent); malunion with moderate knee or ankle disability (20 percent); and malunion with slight knee or ankle disability (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2018). Descriptive words such as “slight,” “moderate” and “marked” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6 (2018). Initially, the Board notes that Diagnostic Code 5262 requires the Board to consider both knee and ankle disabilities resulting from fibula impairment. In this particular case, the Veteran has never alleged that he experiences knee impairment as a residual post right fibula fracture. Instead, he has explicitly alleged that his fibula impairment only manifests in ankle symptoms. See February 2018 VA form 21-4138, Statement in Support of Claim. Thus, in accordance with the Veteran’s express assertions, the Board shall limit its analysis to whether the Veteran can achieve a higher initial disability rating under Diagnostic Code 5262 based solely on any ankle disability resulting for impairment of the right fibula. The Board’s conclusion in this regard is bolstered by two primary considerations. First, the Veteran is already service-connected for right knee osteoarthritis and is receiving VA compensation based on painful motion in the right knee. Thus, the Board is precluded from considering this knee pain under Diagnostic Code 5262, as to do so would compensate the Veteran twice for right knee pain, in violation of VA’s rule against pyramiding. See 38 C.F.R. § 4.14 (2018) (precluding compensation for the same manifestations under different diagnoses); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Moreover, the Veteran has never alleged, and the evidence does not otherwise indicate, that the Veteran has ever experienced any knee impairment as a residual of his past right fibula fracture. Second, the February 2018 private medical opinion submitted by the Veteran indicates that he has been clinically assessed with a prior fracture in the right distal fibula, which is anatomically indistinguishable from the right ankle, and has primarily resulted in painful motion of the right ankle: Anatomically, the fibula terminates distally at the ankle joint. According to the Merriam-Webster Dictionary, “Distal” is defined as—“situated away from the center of the body or from the point of attachment.” As the fibula is oriented, the point of attachment is at the fibular collateral ligament of the knee joint, and its distal end forms the lateral malleolus of the ankle joint. … [The Veteran experiences] painful motion of the [] right ankle due to his Right Distal Fibula Fracture condition. The Veteran’s VA and private treatment records from within the appellate period do not identify any specific residuals resulting from the Veteran’s historic diagnosis of a healed right fibula fracture. The Board’s review of these records reveals that the Veteran has only reported generalized ankle pain, and neither the Veteran nor his representative have cited to any evidence in these records establishing any other primary right ankle symptoms. The Veteran was afforded a VA examination in December 2016 to assess his claimed disabilities. Upon clinical examination, the Veteran was found to have limited range of motion in the right ankle due to pain. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II (2018). The Veteran’s right ankle dorsiflexion was limited to 10 degrees and right ankle plantar flexion was limited to 30 degrees. There was no additional functional loss after repetitive use testing. The VA examiner found no reduction of muscle strength in the right ankle; no right ankle ankylosis; and no right ankle instability or dislocation. The Veteran was afforded an additional VA examination in February 2017. Upon clinical evaluation, the VA examiner noted normal range of motion (0 to 20 degrees dorsiflexion and 0 to 45 degrees plantar flexion) in the right ankle, without pain noted on examination. Repetitive use testing was completed and showed no additional functional loss or restricted range of motion in the right ankle. Right ankle muscle strength was normal, and no right ankle instability was noted. The VA examiner also noted that the Veteran experienced no current symptoms as a result of his fracture of right distal fibula. Having fully reviewed the evidence, the Board finds that the Veteran’s VA and private clinical records, as well as the results of the December 2016 and February 2017 VA examination, show no worse than slight disability in the right ankle due to the Veteran’s service-connected residuals post right fibula fracture, consistent with the Veteran’s current 10 percent rating under Diagnostic Code 5262. The Veteran’s right ankle has not resulted in marked or moderate disability during the appellate period, as the Veteran never exhibited limitation of motion less than half of the normal range of motion in each plane of the right ankle; and he has never exhibited right ankle ankylosis, right ankle instability, or loss of muscle strength in the right ankle. Additionally, the Veteran’s right distal fibula fracture never resulted in nonunion of the fibula. Accordingly, the Board finds no basis upon which to award a disability rating in excess of 10 percent for the Veteran’s service-connected residuals post right fibula fracture under the criteria set forth in Diagnostic Code 5262. In reaching this conclusion, the Board has considered the Veteran’s lay assertions regarding the severity of his disability. In a February 2018 lay statement, the Veteran asserted that his prior right distal fibula fracture resulted in limping, and painful motion, limited movement, weakness, deformity, and stiffness in the right ankle. He alleged that these symptoms limited his ability to engage in activities involving his right ankle joint, to include prolonged sitting, high impact movements, jumping, squatting, climbing stairs, quick side-to-side movements, and prolonged standing. The Veteran is competent to report his observable symptoms, and the Board finds his lay reports to be consistent with the clinical evidence of record. However, even considering the Veteran’s lay assertions, the evidence shows no worse than slight right ankle disability during the appellate period, as the clinical evidence establishes his limitation of motion was only slightly impaired in the right ankle, and he exhibited no ankylosis, no loss in muscle strength, no instability, and no other functional deficits more consistent with a higher rating under Diagnostic Code 5262. In the February 2018 private medical opinion, a nurse practitioner considered the Veteran’s lay assertions in assessing the Veteran’s functional ability and found that the Veteran’s primary symptom was painful motion in the Veteran’s right ankle, commensurate with a 10 percent disability rating. While the Board is cognizant that that assignment of a disability rating is an adjudicative function and not in the purview of medical experts, the statement of the February 2018 nurse practitioner serves as prima facie evidence that the Veteran’s own medical expert found that his right fibula fracture resulted in only slight ankle disability during the appellate period. For the reasons explained in depth, supra, the Board’s independent assessment of the lay and medical evidence supports the same conclusion. In adjudicating this appeal, the Board has considered whether the Veteran can achieve a higher or separate rating under any other diagnostic codes applicable to rating ankle disabilities. The Veteran has never experienced right ankle ankylosis (in any joint), malunion of the os calcis or astragalus, or astragalectomy. Thus, Diagnostic Codes 5270, 5272, 5273, and 5274 are not for application. While the Veteran has exhibited right ankle limitation of motion, as explained supra, the Veteran’s limitation does not correlate with a marked degree of impairment, and thus, the Veteran cannot achieve a higher disability rating under Diagnostic Code 5271. Additionally, the Veteran cannot achieve a compensable rating under Diagnostic Code 5271 in addition to his rating under Diagnostic Code 5262, as both diagnostic codes contemplate for limitation of motion due to pain, and assignment of separate ratings would violate VA’s prohibition against pyramiding. 38 C.F.R. § 4.16 (2018). Also, there is no evidence that the Veteran experiences any radiograph confirmed arthritis in the right fibula, and even if there was, the Veteran is already being compensated for painful limitation of motion. Thus, a higher rating under Diagnostic Code 5003 is not for application. Lastly, the Board notes that neither the Veteran nor his representative has challenged the use of Diagnostic Code 5262 to rate his service-connected residuals post right fibula fracture or argued that that the Veteran’s disability is more appropriately rated under any other Diagnostic Code besides 5262. In light of the above analysis, the Veteran’s request for an initial disability rating in excess of 10 percent for residuals post right fibula fracture is not warranted, and the claim is denied. REASONS FOR REMAND Although the Board regrets the additional delay, the Board finds that the Veteran’s claims seeking entitlement to service connection for left and right ankle disabilities must be remanded to the RO with instructions to obtain a VA medical nexus opinion, as all of the medical nexus opinions received to date are insufficient to justly adjudicate the Veteran’s appeal. The Veteran submitted an April 2015 medical nexus opinion from his treating orthopedic physician’s assistant (PA). In this medical opinion, the PA noted the Veteran’s lay reports of in-service injury to his bilateral ankles; indicated that he “reviewed [the Veteran’s] records and found ample evidence of the injury being incurred on active duty[,] as well as imaging evidence of injury” (without citing specific service treatment records); noted current clinical findings; and then generally stated that the Veteran’s “daily ankle pain is to be regarded [as] a result of injuries sustained during activities sustained while service on active duty for 27 years….” Regrettably, the April 2015 medical opinion by the private PA is wholly conclusory without supporting rationale and is inadequate for adjudicative purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (“[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion.”); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (stating that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion...” and a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight). A VA medical opinion from March 2005 found that the Veteran did not experience a bilateral ankle condition at that time; however, the Board cannot rely on this opinion, as evidence from within the appellate period clearly establishes that the Veteran has since developed current right and left ankle disabilities for VA compensation purposes. In December 2016, the RO obtained VA medical nexus opinions addressing whether the Veteran’s current right and left ankle disabilities were secondary to his service-connected lumbar spine disability pursuant to the provisions of 38 C.F.R. § 3.310 (2018). The VA examiner issued a negative nexus opinion primarily on the basis that the Veteran did not have arthritis in either ankle. The VA examiner explained that a causal connection between the Veteran’s service-connected lumbar spine disability and his bilateral ankle disability could only be identified if the Veteran experienced arthritis in the ankles. She based this opinion on unidentified medical literature which has allegedly established “that the back’s structure reflects a loss of height between plates as seen in degenerative disc disease, this places a greater compression force on the posterior disc facet joint increasing and accelerating tear of other joints extensively and leading to other forms of arthritis.” The December 2016 VA examiner failed to address whether the Veteran’s left and right ankle disabilities were aggravated by his service-connected lumbar spine disability; thus, rendering the secondary service connection opinion insufficient for adjudicative purposes. The RO obtained an additional VA medical nexus opinion in February 2017. In this opinion, the VA examiner declined to link the Veteran’s current ankle disabilities to the Veteran’s active duty service. The VA examiner noted the Veteran’s history of ankle sprains in 1984, but explained that the injury resolved without residuals. The VA examiner failed to address the Veteran’s documented March 2001 right ankle injury, or his lay reports of experiencing yearly recurrent ankle injuries during service that were self-treated with heat and ice, without medical intervention. Accordingly, the Board finds that the direct service connection opinion from the February 2017 VA examiner is not fully informed, and in its current state, it is insufficient for adjudicative purposes. Directly contrary to the December 2016 VA medical nexus opinion, the February 2017 VA examiner determined that the Veteran experienced arthritis in his bilateral ankles, but stated that the Veteran’s service-connected lumbar spine disability did not cause, and was unrelated to, the Veteran’s left and right ankle arthritis. In pertinent part, the VA examiner explained: The perception of “overuse” or “overcompensation” does not take into account that the maximum stress on a lower extremity joint is during the single leg phase of the gait. Forces across the joint will never be greater because of “shifting” a portion of weight from one leg to the other. A thorough review of the literature does not indicate that problems in one joint can be related to problems in another joint, in the absence of a generalized inflammatory condition such as gout or rheumatoid arthritis. Even in that situation, the cause is the original disease, not the other joint. No such diagnosis is present in this case. The previously diagnosed LUMBAR CONDITION/DEGENERATIVE ARTHRITIS LUMBAR SPINE does not cause the Veteran to have any significant physical deformity, ankylosis of the major joints (i.e., ankle, knees or hips), infections involving the spine or joints on the same side of the leg that is affected, neurologic impairment, or severe gait dysfunction; and is, therefore, not a causative factor of the degenerative changes of the left knee. The current medical literature does not recognize LUMBAR SPINE CONDITION/DEGENERATIVE ARTHRITIS LUMBAR SPINE, as a causative factor for developing degenerative changes of the ANKLE. (emphasis in original) Initially, the Board notes that in one section of the secondary service connection opinion, the VA examiner mistakenly referred to “left knee” instead of the Veteran’s bilateral ankle arthritis. When reading the secondary medical nexus opinion as a whole, it is clear that the VA examiner was addressing the relationship between the Veteran’s bilateral ankle arthritis and his service-connected lumbar spine disability, and he correctly mentioned ankles elsewhere in the opinion. Accordingly, the Board finds that the VA examiner’s reference to “left knee” was a scrivener’s error. However, the rationale provided by the February 2017 VA examiner is diametrically opposed to the medical opinion of the December 2016 VA examiner on whether the Veteran’s service-connected lumbar spine disability could result in bilateral ankle arthritis. Both the December 2016 and February 2017 VA examiners stated that medical literature supported their espoused positions, but neither examiner identified nor provided citations to the specific medical literature they relied upon. This fact severely frustrates the Board’s ability to weigh the conflicting medical opinions. The Board’s review of the February 2017 VA medical nexus opinion also reveals that the VA examiner concluded that the Veteran’s bilateral ankle arthritis was not aggravated by the Veteran’s service-connected lumbar spine disability, but this opinion was conclusory and unsupported by an explanatory rationale. See Stefl and Nieves-Rodriguez, supra. Thus, the medical nexus opinion was insufficient in this regard. In sum, the Board finds it would be unjust to decide the Veteran’s claims seeking entitlement to service connection for left and right ankle disabilities based on the medical nexus evidence currently of record, as such evidence is plagued by the evidentiary and legal issues identified above. Accordingly, the Board finds that the claims must be remanded for the RO to obtain an addendum VA medical opinion that fully addresses the Veteran’s contentions, fully considers the evidence of record, reconciles the conflicting evidence, and answers the inquiries necessary for the Board to adjudicate the Veteran’s appeal under all applicable theories of entitlement. Upon remand, the RO shall also associate any new VA treatment records from November 2018 to the present with the electronic claims file for evidentiary consideration. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2018 to the present. 2. Then, obtain a VA addendum medical opinion from an appropriate VA medical examiner addressing the etiology of the Veteran’s claimed right and left ankle disabilities. Following a complete review of the electronic claims file, with such review noted in the opinion report, the examiner is requested to opine on the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current right and ankle disabilities, to include bilateral ankle arthritis, were incurred in or are otherwise etiologically related to the Veteran’s active duty service? The VA examiner must address the Veteran’s service treatment records documenting a left ankle injury in December 1984, a right ankle injury in March 2001, and the Veteran’s lay reports of experiencing yearly recurrent injuries to the ankles during service that were self-treated with soaks, wraps, ice, heat, etc. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current right and left ankle disabilities, to include bilateral ankle arthritis, are proximately due to, the result of, or aggravated by the Veteran’s service-connected lumbar spine disability? The VA examiner is requested to consider, discuss, and reconcile the conflicting medical opinions issued by the December 2016 and February 2017 VA examiners on the issue of whether the Veteran’s right and left ankle disabilities, to include bilateral ankle arthritis, are proximately due to or the result of his service-connected lumbar spine disability. The VA examiner is reminded of the recent precedential decision Ward v. Wilkie, 31 Vet. App. 233 (2019), where the United States Court of Appeals for Veterans Claims held that the term “aggravated” as used in the secondary service connection context refers to “any incremental increase in disability—any additional impairment of earning capacity—in the nonservice-connected disability resulting from the service-connected condition, above the degree of disability existing before the increase—regardless of its permanence.” Id. at 239. [Continued on Next Page]   The addendum VA medical opinions must be supported by a thorough explanatory rationale based on the examiner’s clinical experience and medical expertise; established medical principles; and references to the evidence of record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante, Associate 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.