Citation Nr: 20022097 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-04 466 DATE: March 30, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for high ankle sprain, postoperative is denied. Entitlement to service connection for a nerve disability, to include a lip twitch is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for upper back strain is remanded. Entitlement to an initial rating in excess of 10 percent for lower back strain is remanded. FINDINGS OF FACT 1. The Veteran’s right ankle disability is characterized by pain, stiffness, swelling and moderate limitation of motion. 2. The Veteran’s lip twitch disability began in service and continued after service. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for high ankle sprain, postoperative have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271, (2019). 2. The criteria for service connection for a lip twitch disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to November 2012. This matter came before the Board of Veterans Appeals (Board) on appeal from July 2013 and November 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during a November 2018 Video Conference hearing. A November 2018 Board decision dismissed the issues of service connection for flatfoot and increased ratings for onychomycosis, allergic rhinitis and post-traumatic stress disorder; thus, they are not before the Board. The Board decision also granted service connection for diarrhea. As that constituted a full grant of the issue on appeal, it is not before the Board. A November 2019 rating decision granted service connection for the Veteran’s right hip disability. As that constituted a full grant of the issue on appeal, it is not before the Board. The rating decision also increased the initial rating for the right ankle from 0 to 10 percent. Because higher ratings for this disability are assignable during the relevant period and the Veteran is presumed to seek the maximum available benefit, that issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to an initial rating in excess of 10 percent for high ankle sprain, postoperative The Veteran contends that he is entitled to an increased rating for his right ankle disability. The Board concludes that a rating in excess of 10 percent is not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s right ankle is rated at 10 percent under Diagnostic Code (DC) 5271, which rates limited motion of the ankle, for the entire period on appeal. Under the DC, a 10 percent rating is warranted for moderate limited motion of the ankle. A 20 percent rating is warranted for marked limited motion of the ankle. This is the highest rating available under the DC. VA treatment records document right ankle treatment. March 2013 records noted right ankle pain on examination. December 2016 records noted the Veteran’s complaints of chronic intermittent right ankle pain. On examination, the provider notes free range of motion (ROM) with no evidence of acute inflammation. The provider found that it was stable, with Aleve when needed. September 2017 and March 2018 records noted chronic intermittent joint pain in the right ankle, stable with Aleve. Additional March 2018 and July 2018 records noted some limited ankle dorsiflexion without pain, but do not contain ROM measurements. An August 2013 VA joints examination performed ROM testing of the right ankle, however the Board finds that the examination did not include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. It is therefore inadequate, and the Board assigns it no probative weight. Correia v. McDonald, 28 Vet. App. 158, 166 (2016). At the November 2018 Board hearing, the Veteran reported that turning his ankle outward was very painful and that had problems flexing. He also reported constant stinging pain and occasional swelling. The Board notes that the Veteran is competent to report lay-observable symptoms such as pain and assigns his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). An August 2019 VA examination noted the Veteran’s reports of pain and reduced ROM and stability. ROM testing showed dorsiflexion limited at worst to 15 degrees and plantar flexion limited at worst to 40 degrees. No pain was noted upon examination or upon weight bearing. The examiner found that there was no change with passive ROM testing. The examiner observed that the Veteran did not report pain during testing and there were no objective signs of pain when the joint was used in non-weight bearing. The examiner noted that instability was suspected, but all instability tests performed were negative. The examiner found that muscle strength was normal and there was no atrophy. A November 2019 VA examination noted the Veteran’s reports of intermittent soreness. The examiner noted that the Veteran denied decreased movement over time and flare ups. The Veteran ROM testing showed dorsiflexion limited at worst to 20 degrees and plantar flexion limited at worst to 40 degrees. No pain was noted upon examination or upon weight bearing. The examiner found that there was no evidence of pain on passive ROM testing or non-weight bearing. At the outset, the Board finds the August 2019 and November 2019 VA examinations adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examination and the examiner’s observations, the Board assigns them significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). Again, the Veteran’s right ankle is rated at 10 percent for the entire period on appeal. To warrant a 20 percent rating under DC 5271, the evidence would need to show marked limited motion of the right ankle. The Board finds that the competent evidence shows the Veteran does not have marked limited motion in his right ankle. The competent evidence showed reduction in dorsiflexion limited at worst to 15 degrees (with normal ROM to 20 degrees), representing a one quarter reduction in ROM. The competent evidence shows plantar flexion limited at worst to 40 degrees (with normal ROM to 45 degrees), representing an 11 percent reduction in ROM. The examiner also did not find pain upon range of motion testing. The Board notes that these findings are consistent with VA treatment records noting limited dorsiflexion without pain. Although the rating criteria does not specifically define “moderate” or “marked” limitation of motion, the Board finds that a reduction of a quarter or less of full ROM on both dorsiflexion and plantar more closely approximates a moderate limitation of motion. The Board acknowledges the Veteran’s reports of pain, reduced motion, stiffness and swelling and that he is competent to report such lay-observable symptoms. However, there is no indication that these symptoms result in marked limitation of motion. The December 2016 VA treatment records noted pain, but the provider found full range of motion. Moreover, moderate limited motion due to the Veteran’s reported symptoms (including pain) is encompassed in the 10 percent rating already assigned. The Board has also considered whether a rating under an alternate DC is warranted. However, as the evidence does not indicate that the Veteran’s right ankle is ankylosed or involves malunion of os calcis or astragalus, ratings under DCs 5270, 5272, 5273 and 5274 are not warranted. For the reasons noted above, the Board finds that the preponderance of the evidence is against an initial rating in excess of 10 percent for the right ankle. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 2. Entitlement to service connection for a nerve disability, to include a lip twitch The Veteran contends that his current disability of a lip twitch began in service and has continued since service. The Board concludes that the Veteran has a diagnosed lip twitch that began during active service and that service connection is therefore warranted. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). Service treatment records indicate that the Veteran chipped a tooth in service, as February 2006 service treatment records note a chipped front tooth that was absent at a prior examination in September 2003. A February 2013 VA examination noted a facial tic involving involuntary raising of the lip in a twitching manner and opined that the 5th cranial nerve was likely involved but did not offer an etiological opinion. At the November 2018 Board hearing, the Veteran reported that he did not have a lip twitch prior to service, but it began after he fell and was hit in the mouth by a board during active duty. The Veteran reported that the incident also resulted in a chipped tooth. The Board notes that the Veteran is competent to describe the onset of lay-observable symptoms such as a facial tic and accords his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). An August 2019 VA examination found fasciculations/spasms of the right upper lip with uncertain etiology. The examiner noted the Veteran’s reports of onset in 2004. The examiner found that the lip twitch was not likely due to service, stating as a rationale that service treatment records were silent for complaints of lip twitching. The Board finds that the opinion is inadequate as it disregards the Veteran’s lay statements regarding the onset of his lip twitch merely because they are unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). The Board therefore accords the etiological opinion no probative weight. The Board therefore finds that the competent evidence of record indicates that the Veteran has a current lip twitch disability that was incurred during service and has continued since service. While the August 2019 etiological opinion has been found to be inadequate, both VA examinations of record found a lip twitch. The Veteran submitted competent lay evidence that the twitch began after he was hit in the face during service and has persisted since that time. The Board notes that the Veteran’s reports of the incident are supported by records showing a chipped front tooth in service. There is simply no basis upon which to dissociate the Veteran’s currently diagnosed lip twitch disability from the lay-observable manifestations in service. Service connection for a lip twitch is therefore warranted. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for upper back strain is remanded. 2. Entitlement to an initial rating in excess of 10 percent for lower back strain is remanded. The November 2018 Board decision remanded the issues of increased ratings for the cervical and lumbar spine for new VA examinations and specifically requested that if pain was noted on range of motion testing, the examiner should note the point during range of motion at which pain began. VA cervical and lumbar spine examinations were provided pursuant to the remand in August 2019 and November 2019, and while the examiners each case found pain on range of motion testing, they did not note the point in range of motion at which pain began. Remand for new examinations is therefore required to ensure compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his cervical and lumbar spine disabilities. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all cervical and lumbar spine pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in 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. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, 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.