Citation Nr: 20021738 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 11-05 449 DATE: March 26, 2020 ORDER Entitlement to a 20 percent rating for service-connected right ankle status-post avulsion fracture and immobilization is granted. REMANDED Entitlement to service connection for a pulmonary disability to include sleep apnea is remanded. FINDING OF FACT The Veteran’s service-connected right ankle status-post avulsion fracture and immobilization more nearly approximates marked limitation of motion; there is no evidence of ankylosis. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for a rating of 20 percent, but no higher, for service-connected right ankle status-post avulsion fracture and immobilization have been met throughout the appeal period. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1994 to July 1994 and February 2003 to May 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated March 2010 and May 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a January 2018 Board decision, the claims were remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denial in a May 2019 supplemental statement of the case (SSOC). The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. In June 2019, the Veteran submitted additional evidence directly to the Board. At that time, he also submitted a written waiver of local consideration of this evidence; the waiver is contained in the VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c). The January 2018 Board decision also remanded the matter of entitlement to service connection for a skin disorder/contact dermatitis. In a May 2019 rating decision, service connection was granted for contact dermatitis and a noncompensable (zero percent) disability rating was assigned. To the Board’s knowledge, the Veteran has not disagreed with that decision; that matter has accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). The Board notes that the issues of entitlement to service connection for low back disability, right and left knee disabilities, right and left lower extremity radiculopathy, circulatory disorder, gastric disorder, acquired psychiatric disorder, psoriatic arthritis, and liver disorder are part of a separate appeal stream and were remanded by the Board in July 2018. Review of the record shows that the RO has not completed the development requested by the Board, as such, those claims are not currently before the Board and will be addressed in a separate decision at a later date 1. Entitlement to a rating in excess of 10 percent for service-connected right ankle status-post avulsion fracture and immobilization. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). The Board has considered all evidence of record as it bears on the issues before it. See 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”); 38 U.S.C. § 5107(b) (“Secretary shall consider all information and lay and medical evidence of record in a case”). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s appeal. 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. 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 enervation, 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. In the instant case, the Veteran’s service-connected right ankle status-post avulsion fracture and immobilization is rated under DC 5271, which evaluates limitation of motion of the ankle. Under DC 5271, a 10 percent evaluation is assigned for moderate limitation of the ankle, and a maximum 20 percent evaluation is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 8 C.F.R. § 4.71a, Plate II. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). While the Rating Schedule does not provide any information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in VBA’s M21-1 Adjudication Procedures Manual. Specifically, the M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. Diagnostic Code 5270 assigns a 20 percent evaluation for ankylosis of the ankle in plantar flexion, less than 30 degrees. 38 C.F.R. § 4.71a, DC 5270. A 30 percent evaluation is assigned for ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between zero and 10 degrees. A 40 percent evaluation is assigned for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with an abduction, adduction, inversion or eversion deformity. Diagnostic Code 5272 assigns a 10 percent evaluation for ankylosis of the subastragalar or tarsal joint in good weight-bearing position, and assigns a 20 percent evaluation for ankylosis of the subastragalar or tarsal joint in poor weight-bearing position. 38 C.F.R. § 4.71a, DC 5272. Diagnostic Code 5273 assigns a 10 percent evaluation for malunion of the os calcis or astraglus with moderate deformity, and assigns a 20 percent evaluation with marked deformity. 38 C.F.R. § 4.71a, DC 5273. Diagnostic Code 5274 assigns a 20 percent evaluation for astragalectomy. 38 C.F.R. § 4.71a, DC 5274. Loss of use of a foot is rated at 40 percent under Diagnostic Code 5167, which includes a note that the loss of use of a foot is also entitled to special monthly compensation (SMC). Similarly, amputation of the forefoot, proximal to the metatarsal bones (more than one-half of metatarsal loss) is rated at 40 percent under DC 5166, which also includes eligibility for entitlement to SMC. 38 C.F.R. § 3.350(a)(2); 4.63; 4.71a, DCs 5166, 5167. Thus, in addition to benefits under the schedular criteria set out in 38 C.F.R. § 4.71a, loss of use of the foot also warrants entitlement to compensation under the SMC regulations set forth in 38 C.F.R. § 3.350. Historically, the Veteran was service-connected for right ankle status-post avulsion fracture and immobilization in a March 2010 rating decision, which granted a 10 percent rating from October 19, 2009. In April 2011, he filed a claim of entitlement to an increased rating as to his right ankle disability, which was denied in a May 2011 rating decision, and this appeal follows. In this matter, the Veteran asserts entitlement to a rating in excess of 10 percent for his service-connected right ankle status-post avulsion fracture and immobilization. For the reasons set for below, the Board finds that a rating of 20 percent, but no higher, is warranted throughout the appeal period. Private treatment records dated in February 2011 documented the Veteran’s report of chronic right ankle pain. Physical examination of the right ankle revealed marked swelling, and manual flexion to 10 degrees with pain. There was no effusion; the right ankle was noted to be rather stiff with general tenderness. The Veteran was afforded a VA examination in May 2011 at which time the examiner noted the Veteran’s report of worsening right ankle symptoms. The Veteran reported that, in the morning, he experiences difficulty standing and develops swelling in the right ankle. He indicated that, during the day, he feels a needle sensation and cracking in the right ankle. He reported recurrent right ankle sprains and multiple falls. However, he has never sought treatment for these falls. The Veteran additionally endorsed deformity, giving way, instability, pain, stiffness, weakness, incoordination, and decreased speed of joint motion. There was no locking or effusion. The Veteran reported severe flare-ups of right ankle pain, which occur every one to two months with a duration of one to two days. Flare-ups are precipitated by walking and alleviated with rest. The Veteran indicated that he has had more than four incapacitating episodes due to right ankle symptoms, which last days. He is able to stand for 45 to 60 minutes, and he is able to walk for a quarter of a mile. The examiner indicated that the Veteran does have a normal gait; but, he ambulates with the use of a cane and an ankle brace. There is evidence of abnormal weight-bearing, as well as crepitus and tenderness. The examiner indicated that there is no objective evidence of instability or tendon abnormality. Range of motion testing revealed dorsiflexion to 15 degrees and plantar flexion to 40 degrees. There was no evidence of pain with active range of motion. There was no additional limitation of motion on repetitive use testing. The examiner reported that the Veteran is employed full-time, but describes limitations in his job such as difficulty with prolonged standing and difficulty walking outside. Private treatment records dated in July 2011 noted the Veteran’s report of right ankle pain and instability. The Veteran presented with stiffness, swelling, and frequent sprains of his right ankle. See the private treatment records dated July 2011. The treatment provider indicated that the Veteran had limited range of motion and swelling of the right ankle. Id. The treatment provider indicated that the Veteran does not tolerate prolonged standing and has had multiple episodes of falling due to his ankle problems. Id. Pursuant to the January 2018 Board Remand, the Veteran was afforded a VA examination in March 2018 at which time the examiner noted the Veteran’s report of severe right ankle pain. The Veteran endorsed flare-ups manifested by severe ankle pain. As to the examiner explained that pain in the Veteran’s right ankle “could significantly limit functional ability during flare-ups or when the joint is used over a period of time. There is no evidence of weakness and there is no evidence of fatigability or incoordination at this moment.” The examiner continued, “[t]o express additional limitation due to pain in terms of degrees of additional range of motion is not possible in view that it should be documented during a positive flare-up period not during a regular medical evaluation.” The examiner additionally stated, “[s]uch additional limitation could not be expressed in terms of additional range of motion because it be will speculative in view that today is not a positive flare-ups episode.” The March 2018 VA examiner further indicated that the Veteran has difficulty with prolonged standing. Range of motion testing documented dorsiflexion to 15 degrees and plantar flexion to 30 degrees. Pain was noted upon examination, but did not result in functional loss. There was evidence of pain with weight-bearing. The examiner indicated that there was no objective evidence of tenderness/pain on palpation. There was also no crepitus. Repetitive range of motion testing did not result in additional limitation of motion. Muscle strength was 5/5. There was no ankylosis or atrophy. There was no objective evidence of instability of the right ankle. The Veteran did have pain upon passive motion testing. The examiner indicated that the Veteran’s right ankle disability has no impact on his ability to work. In sum, the clinical findings, documented by the VA examination reports document impaired range of motion of the right ankle due to pain, as well as the Veteran’s report of repeated swelling and stiffness of the right ankle with corresponding functional impairment. To this end, the Board has considered whether an increased schedular rating is warranted for the Veteran’s right ankle disability based on functional loss due to pain, weakness, excess fatigability, incoordination and flare-ups, pursuant to 38 C.F.R. §§ 4.40, 4.45 and 4.59 and the Court’s holding in DeLuca v. Brown, supra. Given the Veteran’s complaints of significant functional impairment and pain as well as the March 2018 VA examiner’s findings of impairment during flare-ups, the Board finds that the Veteran’s service-connected right ankle disability more nearly approximate the criteria for marked limitation of motion under DC 5271 throughout the appeal period. 38 C.F.R. § 4.71a, DC 5271. The Veteran’s 20 percent rating is for “marked” limitation of motion under DC 5271, which is the highest disability rating available for limitation of motion of the ankle, short of ankylosis. Range of motion testing shows that the Veteran’s right ankle is not fixed in plantar flexion or dorsiflexion. Similarly, lay statements do not indicate that there has been ankylosis. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca, 8 Vet. App. at 204-207; 38 C.F.R. §§ 4.40, 4.45 (2016), this rule does not apply where, as here, the Veteran is now receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board has considered the application of other pertinent diagnostic codes throughout the appeal period. However, the Veteran did not manifest malunion of the os calcis or astragalus, nor consolidation of either ankle and/or subastragalar or tarsal joint. There is also no basis for evaluating the service-connected left ankle disability as analogous to DC 5283 or DC 5273. The Veteran’s VA examinations demonstrated range of motion of the right ankle. As such, the schedular criteria for a higher rating under DCs 5270 and 5272 have not been met. He had not undergone an astragalectomy and, hence, the criteria of DC 5274 are not applicable. There is also no evidence of record to show that the Veteran’s right ankle symptomatology is so severe as to be analogous to loss of use of a foot or forefoot under Diagnostic Codes 5167 and 5166 and he does not contend otherwise. As such, the Veteran is not entitled to special monthly compensation for loss of use of the foot under 38 C.F.R. § 3.350. For the foregoing reasons, the Board finds that the Veteran’s service-connected right ankle status-post avulsion fracture and immobilization warrants a rating no higher than 20 percent throughout the appeal period. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND 1. Entitlement to service connection for a pulmonary disability to include sleep apnea is remanded. This matter was remanded by the Board in January 2018 in order to obtain VA examinations with medical opinions as to the etiology of the claimed pulmonary disability to include sleep apnea. The Board instructed that the examiner should provide an opinion as to whether the Veteran’s claimed pulmonary disability to include sleep apnea was related to his active duty service, and whether the Veteran’s claimed disability was caused or aggravated by his service-connected right ankle. The examiner was specifically instructed to address an underlying question of whether it is at least as likely as not that the Veteran’s current obesity was caused or aggravated by the service-connected right ankle disability. In so doing, the examiner was to consider and discuss the July 2011 opinion of Dr. V that the Veteran’s sleep apnea was more probable than not caused by weight gain due to his service-connected ankle problems. Pursuant to the January 2018 Board Remand, the Veteran was afforded VA pulmonary and sleep apnea examinations in March 2018. The examiner confirmed a diagnosis of obstructive sleep apnea and determined that the Veteran does not have a separate pulmonary disability. As to the question of nexus, the examiner determined “that the Veteran’s obstructive sleep apnea is less likely as not (less than 50/50 probability) incurred in, caused by, or aggravated beyond the normal progress by his military service or, by the service-connected right ankle” disability. However, the rationale provided by the examiner was non-responsive as to whether it is at least as likely as not that the Veteran’s current obesity was caused or aggravated by the service-connected right ankle disability. Accordingly, given the inadequacy of the March 2018 VA opinion, the RO failed to ensure substantial compliance with the Board’s January 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This matter must therefore be remanded in order to obtain a new VA medical opinion to address outstanding questions of nexus and aggravation. The matters are REMANDED for the following action: Refer the VA claims file to a medical professional with appropriate expertise to provide an opinion as to the claimed obstructive sleep apnea. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner should then address the following: (a). With respect to the diagnosed obstructive sleep apnea, the clinician should render an opinion, consistent with sound medical judgment, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service or is otherwise medically related to in-service injury or disease. In this regard, the clinician should note that the absence of evidence of treatment for sleep apnea in the Veteran’s service treatment records should not serve as the sole basis for a negative opinion. (b). Is it at least as likely as not that the Veteran’s obstructive sleep apnea was caused by a service-connected disability, to include weight-gain due to the pain caused by his service-connected right and left ankle disabilities? (c). If not, is it at least as likely as not that the Veteran’s obstructive sleep apnea is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to include weight-gain due to pain caused by his service-connected right and left ankle disabilities? In rendering these findings, the examiner should consider and discuss the July 2011 opinion of Dr. V that the Veteran’s sleep apnea was more probable than not caused by weight gain due to his service-connected ankle problems. If the Veteran’s obstructive sleep apnea is aggravated by a service-connected disability, the clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The clinician is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the Veteran’s assertions in any regard are discounted, the examiner should clearly so state and explain why. Should the examiner decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. In addressing the above, the examiner must consider and discuss all pertinent medical, periodical, and other objective in- and post-service evidence, and all lay assertions. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.