Citation Nr: 20021737 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-28 808A DATE: March 26, 2020 ORDER Restoration of a 20 percent disability rating from April 16, 2016 to January 29, 2019, for arthritis of the left ankle with anterior and posterior impingement syndrome, to include a tear of anterior talofibulation ligament (left ankle arthritis disability) is granted. Entitlement to a temporary total evaluation based on convalescence for surgery on a service-connected lower left leg compartment syndrome is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for compartment syndrome of the lower left leg, as secondary to service-connected ankle arthritis disability, with posterior impingement syndrome, to include a tear of anterior talofibulation ligament (left lower leg disability) is remanded. Entitlement to an increased rating in excess of 20 percent for left ankle arthritis with posterior impingement is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A May 2016 rating decision reduced the rating for the service-connected left ankle arthritis with posterior impingement syndrome, to include a tear of anterior talofibulation ligament (left ankle arthritis disability) from 20 percent to 10 percent, effective April 16, 2016; the rating decision did not reduce the overall disability rating. 2. As of April 16, 2016, the 20 percent rating for the service-connected left ankle arthritis disability had been in effect for more than five years. 3. At the time the reduction was effectuated, the service-connected left ankle arthritis disability had not undergone sustained improvement. 4. The Veteran was not service connected for a lower left leg compartment syndrome disability at the time of his September 2015 surgery; therefore, a temporary total evaluation for a lower left leg disability surgery may not be awarded as a matter of law. CONCLUSIONS OF LAW 1. The reduction of the disability rating for the service-connected left ankle arthritis with anterior and posterior impingement syndrome, to include a tear of anterior talofibulation ligament, from 20 percent to 10 percent was not proper; the criteria for restoration of the 20 percent disability rating from April 16, 2016 to January 29, 2019 are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.27, 4.71a, Diagnostic Code (DC) 5015-5271. 2. The criteria for a temporary total convalescent rating for a lower left leg compartment syndrome surgery in September 2015, are not satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1985 to October 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 and April 2019 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran and his spouse appeared and testified before the undersigned Veterans Law Judge in a Video Conference Hearing. A transcript of this hearing has been reviewed and associated with the Veteran’s claims file. The issue of TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for TDIU will be considered as part of the claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009) Restoration of Reduced Rating 1. Restoration of a 20 percent disability rating from April 16, 2016 to January 29, 2019, for arthritis of the left ankle with posterior impingement syndrome, to include a tear of anterior talofibulation ligament (left ankle arthritis disability) In May 2016, the RO reduced the 20 percent rating for the service-connected left ankle arthritis disability to 10 percent, effective April 16, 2016. Because the reduction accomplished in the May 2016 rating decision did not affect the Veteran's overall disability rating due to increased ratings for other service-connected disabilities, the due process protections of 38 C.F.R. § 3.105 (e) do not apply. VAOPGCPREC 71-91; Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). The Board will now consider the propriety of the rating reduction. At the time the reduction became effective, on April 16, 2016, the 20 percent rating for the right ankle disability had been continuously in effect for more than five years. As such, the provisions of 38 C.F.R. § 3.344 (a) and (b) are applicable. A rating reduction is not proper unless the disability shows actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. At the time of the rating reduction, the left ankle arthritis disability had been rated under the criteria found at 38 C.F.R. § 4.71a, DC 5271 for limitation of ankle motion. DC 5271 provides for a 10 percent rating when there is evidence of moderate limitation of ankle motion, a 20 percent rating for marked impairment of ankle motion. 38 U.S.C. § 4.71 a. In this case, the Board finds that the evidence does not show sustained improvement of the left ankle arthritis disability, including under the ordinary conditions of life and work, at the time of the reduction; therefore, the criteria for restoration of a 20 percent rating for the left ankle disability, effective from April 16, 2016, are met. Historically, in the July 2003 rating decision, the RO granted service connection for the left ankle arthritis disability with a 20 percent rating effective from June 11, 2003. The RO found that the symptoms and impairment associated with the disability approximated a marked limitation of motion of the left ankle, so that a 20 percent schedular rating was warranted. In the November 2014 VA Ankle examination, the Veteran was diagnosed with osteoarthritis of the ankle. The Veteran’s range of motion was noted as abnormal with dorsiflexion to 10 degrees and plantar flexion to 35 degrees. The examiner stated that no pain was noted on exam and that the Veteran did not report any flare-ups, neither did he report having any functional loss or impairment of the left ankle. Muscle strength was recorded as normal and no atrophy was noted. There was evidence of joint instability, but the examiner noted that the Veteran did not use any assistive devices as a normal mode of locomotion. See November 2014 C&P Examination. In a June 2016 VA Ankle examination, the examiner noted less movement than normal in the left ankle, due to ankylosis, limitation or blocking, adhesions, tendon-tie-ups, contracted scars, etc., and that this interferes with standing. Dorsiflexion was to 15 degrees and plantar flexion to 35 degrees. Pain was noted on examination and was said to cause functional loss. On repeated use over time, the examiner noted that he is unable to opine, because the Veteran reported that his left ankle hurts all the time, making repeated use, difficult. The examiner concluded that the Veteran’s ankle condition impacts his ability to perform activities requiring prolonged standing, climbing, or walking due to decreased range of motion, increased weakness and pain with repetitive use. See April 2016 C&P Examination. At a January 2019 VA Ankle Examination, the Veteran’s ROM was noted as being abnormal with dorsiflexion to 5degrees and plantar flexion to 5degrees. Pain was noted on exam on rest/non-movement. Guarding left ankle, lateral and medial was noted as moderate to severe. The examiner noted that there was worsening of the Veteran's symptoms. See January 2019 C&P Examination. Throughout his VAMC medical records, the Veteran has complained of continued pain in his left ankle. In September 2015, Dr. C. C noted in his report that the Veteran was only able to tolerate minimal ROM of the ankle due to pain. In a March 2016 primary care note, the Veteran reported that he continued to have chronic left ankle pain, swelling and stiffness, and rated his pain as about 8 out of 10 on a pain scale. In February 2016, VAMC records noted that the Veteran was referred from the emergency room department for chief complaint of chronic left ankle pain that was rated 9 out of 10 pain intensity. The Veteran had also reported that his ankle pain has worsened since approximately October 2015 and that he has difficulty performing prolonged weight bearing type activities. See CAPRI. Based on all the record, the evidence does not demonstrate a sustained improvement of the left ankle disability under the ordinary conditions of life and work at the time of the May 2016 rating reduction decision. Rather, it suggests possibly worsened left ankle arthritis disability symptoms. VA may not reduce the rating because the Veteran does not meet the schedular criteria, unless the underlying disorder has shown improvement, or unless clear and unmistakable error is shown in the determination to assign the disability rating. Because the burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence, and the evidence of record in this case does not show sustained improvement of the service-connected left ankle disability at the time of the May 2016 rating reduction, the Board finds that the reduction of the 20 percent rating to 10 percent rating effective from April 16, 2016 was not proper; therefore, restoration of the 20 percent disability rating under hyphenated DC 5015-5271 is warranted. 2. Entitlement to a temporary total evaluation based on convalescence for surgery on service-connected lower left leg compartment syndrome A temporary total disability evaluation (100 percent) will be assigned when it is established by report at hospital discharge or outpatient release that entitlement is warranted. Total ratings will be assigned under this section if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence, (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or for continued use of wheelchair or crutches, (3) immobilization by cast, without surgery, of one major joint or more (emphasis added). 38 C.F.R. § 4.30. The Veteran contends that he is entitled to temporary total evaluation for surgery and time of convalescence for his now service-connected lower left leg compartment syndrome disability. See September 2016 Notice of Disagreement (NOD). Post-service treatment records support that the Veteran had surgery for lower left leg compartment syndrome disability in September 2015 and that he currently uses modified shoes, ankle and leg prothesis/ braces for mobility. See CAPRI. In this instance, a temporary total rating for the Veteran's service-connected lower left leg compartment syndrome disability is not warranted. The Veteran's filed his service connection claim for a lower left leg disability in March 2015. The AOJ granted service connection for the Veteran’s lower left leg, compartment syndrome disability effective March 14, 2016 (the date the claim was file). There's a six-month difference in filing for service connection and the Veteran’s surgery. Consequently, as the Veteran was not service connected for this disability at the time of his surgery in September 2015, the claim for a temporary total rating based on convalescence must be denied as a matter of law. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 10 percent for compartment syndrome of the lower left leg, (lower left leg disability) is remanded. The Veteran asserts that his lower left leg disability warrants a disability rating in excess of 10 percent. The Board notes that, the Veteran and his treating orthopedic surgeon have questioned the qualifications of the June 2016 VA examiner. The Board is entitled to assume the competence of a VA examiner, and the appellant bears the burden of persuasion to show that reliance on the examiner's opinion was in error. See Cox v. Nicholson, 20 Vet. App. 562, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999), Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001)). Here, the Veteran has presented no rationale for asserting that the VA examiner was not professionally qualified to render an opinion on the medical opinion at issue in this case. Nevertheless, the Veteran was last afforded a VA examination for his service-connected compartment syndrome of the lower left leg in January 2019. The Veteran reported throbbing pain and increased stiffness with flare ups and some left knee and lower leg swelling. The Veteran also reported difficulty sitting or standing for long periods of time, difficulty walking on uneven surfaces and that he ambulates with double upright braces on his left leg and uses a cane. During the January 2020 Board hearing, the Veteran testified that his symptoms have worsened and that he has had trouble with balance for which he last received treatment in December 2019. As such, the Board finds that the Veteran should be afforded a new VA examination to determine the current severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). 2. Entitlement to an increased rating in excess of 20 percent for left ankle arthritis with posterior impingement is remanded. In a January 2019 rating decision, the RO granted an increased evaluation of 20 percent for the Veteran’s left ankle arthritis disability. The Veteran contends that he is entitled to a rating in excess of 20 percent for this disability. During Board hearing, the Veteran asserted that because his left ankle disability has worsened, it has caused the compartment syndrome in his leg. The Veteran’s spouse also testified that the Veteran’s left ankle never improved and that the Veteran has not been able to work, cut grass or walk around the yard. See January 2020 Hearing Transcript. Thus, the Board finds that the Veteran should be afforded a new VA examination to determine the current severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran testified during Board hearing that he stopped working in April 2018. The Veteran also stated that he is currently receiving social security disability benefit for the same service-connected disabilities. The Board notes that the evidence on record reasonably raises a claim for TDIU due to the Veteran’s service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the RO should develop a claim for TDIU in accordance with Rice. The Board further notes that the TDIU issue is intertwined with the lower left leg and left ankle disabilities, because the Veteran has asserted that he is unemployable due to his service-connected disabilities. Thus, the Board finds that adjudication of the TDIU claim must be deferred pending resolution of the increased rating claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records and Social Security Disability records and associate them with the Veteran’s claims file. 2. Provide the Veteran with proper VCAA notice under 38 U.S.C. A. § 5103 (a) and 38 C.F.R. § 3.159 (b) that informs him of the evidence and information necessary to establish entitlement to a TDIU. He should be requested to complete and return VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). A copy of this notice and request must be included in the file. 3. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his service-connected compartment syndrome of the lower left leg. 4. Also schedule the Veteran for a VA examination to determine the current severity of his service-connected left ankle arthritis disability. The examiner (s) should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's lower left leg and left ankle disabilities under the rating criteria. The examiner(s) must attempt to elicit information regarding the severity, frequency, and duration of all symptoms. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested). 5. After completing the above and any other development deemed necessary, adjudicate the issues of increased rating for left lower leg and left ankle arthritis disabilities and an entitlement to a TDIU, based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the   case (SSOC) and an appropriate period of time should be allowed for response. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.