Citation Nr: 20041689 Decision Date: 06/18/20 Archive Date: 06/18/20 DOCKET NO. 09-40 075 DATE: June 18, 2020 ORDER Entitlement to a separate 10 percent rating, from February 8, 2019, for right ankle instability, by analogy under Diagnostic Code (DC) 5262, is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for gout, degenerative joint disease (DJD), and residuals of a fracture of the lateral malleoulus of the right ankle (right ankle disability) is remanded. Entitlement to an initial rating in excess of 20 percent for gout and osteoarthritis of bilateral great toe (bilateral great toe disability), for the period prior to September 19, 2016, is remanded. FINDING OF FACT From September 8, 2019, the Veteran’s right ankle condition is manifested with slight instability. CONCLUSION OF LAW The criteria for evaluation for a separate 10 percent disability rating for right ankle instability, from September 8, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, DC 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1979 to June 2008. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision issued by a Department of Veterans Affairs (VA) regional office. Entitlement to a separate 10 percent rating, from February 8, 2019, for right ankle instability under Diagnostic Code (DC) 5262, is granted. As discussed below, the Veteran is seeking an increased rating for his right ankle disability, currently rated under DC 5271 for limited motion. In February 2019, the Veteran underwent a VA examination to determine the severity of his right ankle disability. In this examination, the examiner diagnosed the Veteran with right ankle instability and noted that this diagnosis was a progression of his service-connected right ankle disability. The examiner also noted that the Veteran walks with a cane. See February 2019 VA Ankle Conditions Disability Benefits Questionnaire (DBQ). As a rating under DC 5271 is based on limited motion of the ankle, ankle instability is not contemplated by DC 5271. Likewise, the Board has considered other diagnostic codes pertaining to the ankle, but as they address ankylosis (DC 5270, 5272), malunion of the os calcis or astragalus (DC 5273), and astragalectomy (DC 5274), the Board finds that ankle instability is not contemplated by these codes. As such, a rating must be assigned by analogy, in which the condition is rated under a closely related injury in which the functions affected and the anatomical localization and symptomatology are closely analogous. See 38 C.F.R. § 4.20. Under DC 5262, impairment of the tibia and fibula, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for malunion of the tibia and fibula with loose motion requiring a brace. The Board acknowledges that the Veteran is service connected for right tibia fracture. However, the evidence shows that this fracture healed and that the tibia right tibia and fibula are otherwise unremarkable. See February 2008 Radiology Consultation. Although there is no evidence of malunion or nonunion of the Veteran’s right tibia and fibula, the evidence demonstrates a slight degree of instability in the right ankle. Indeed, as noted above, the February 2019 VA examiner diagnosed the Veteran with right ankle instability and noted that this was a continuation of his service-connected right ankle disability. See February 2019 VA Ankle Conditions DBQ. Resolving all doubt in the Veteran’s favor, the Board finds that a separate 10 percent rating is warranted, by analogy, under DC 5262, effective February 8, 2019, the date the Veteran was first diagnosed with a right ankle disability. However, a 20 percent rating is not warranted. Aside from stating that he uses a cane, the Veteran has not provided lay descriptions of his right ankle instability, nor does the medical evidence of record show any reports or indications of instability. Therefore, his instability is most accurately described as slight. (Continued on Following Page) REASONS FOR REMAND Procedural History In November 2011 and November 2013, the Board remanded the matters to the Agency of Original Jurisdiction (AOJ) for further development. In an April 2014 rating decision, the AOJ increased the disability rating for the Veteran’s great toe disability from noncompensable to 20 percent, effective January 16, 2014. The AOJ also increased the disability rating for the Veteran’s right ankle disability from noncompensable to 10 percent, effective January 16, 2014. In a June 2014 decision, the Board extended the 20 percent rating for bilateral great toe disability and 10 percent rating for right ankle disability to the entire appeal period. The Veteran filed a notice of appeal with the United States Court of Appeals for Veterans Claims (Court). In an October 2015 memorandum decision, in pertinent part, the Court vacated and remanded the Board’s June 2014 decision on these issues. In August 2016, the Board remanded the issues for further development. In May 2017, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for right ankle disability and denied the issue of entitlement to an initial rating in excess of 20 percent for bilateral great toe disability, for the period prior to September 19, 2016, but granted an increased initial 30 percent rating for the period beginning September 19, 2016. The Veteran filed another appeal to the Court. In June 2018, the parties filed a joint motion for partial remand (JMPR). The parties stipulated to the dismissal of the appeal pertaining, inter alia, to the May 2017 Board decision that rendered a favorable determination for an increased initial rating for bilateral great toe disability beginning September 19, 2016; but vacated and remanded the portion of the May 2017 Board decision that, inter alia, denied the claim for an initial rating in excess of 20 percent for bilateral great toe disability, for the period prior to September 19, 2016. In June 2018, the Court granted the motion and remanded the claim back to the Board for further development. In April 2018, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for right ankle disability for further development. In February 2019, the Board remanded the issue of entitlement to an initial rating in excess of 20 percent for bilateral great toe disability, for the period prior to September 19, 2016, for additional development. Analysis 1. Entitlement to an initial rating in excess of 10 percent for right ankle disability is remanded. The Board sincerely regrets the delay associated with this remand, particularly in light of the extensive procedural history set forth above. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the AOJ has not substantially complied with the April 2018 remand directives. See Stegall v. West, 1 Vet. App. 368, 271 (1998). Specifically, in April 2018, the Board instructed the AOJ to provide the Veteran with a VA examination to determine the severity of his right ankle disability. As part of the examination, the Board instructed the examiner to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner was also instructed to comment on functional limitations caused by pain and any other associated symptoms, including any additional limitation of motion following repeated use over time due to pain, weakness, fatigability, etc. In February 2019, the Veteran underwent a VA examination in which the Veteran reported experiencing flare-ups that resulted in difficulty bearing weight, swelling, and limited range of motion (ROM). However, no information was elicited regarding the frequency, duration, or severity of his flare-ups. Further, the examiner declined to comment on functional limitations during flare-ups or repetitive use over time, stating that there was no conceptual or empirical basis for making a determination without directly observing function under those conditions. See February 2019 VA Ankle Conditions DBQ. As the Board cannot find substantial compliance with the April 2018 remand directives, a remand is necessary to allow the AOJ to provide VA examinations that complies with the Board’s remand directives. See Stegall v. West, supra. Even if the Board could find substantial compliance with the April 2018 remand directives, a remand would be warranted nonetheless. As noted above, in October 2015, the Court remanded these matters, in part, because the Board failed to discuss whether a separate rating for gout was warranted. In a January 2017 VA examination, the examiner stated that it was not possible to separate the symptoms attributable to gout from those attributable to his other conditions. In making this determination, the examiner stated that, during flare-ups, there may be additional symptoms of excessive heat, more severe pain, and swelling superimposed on his baseline pain from the other conditions. However, this suggests that the symptoms the Veteran experiences when he is not experiencing a flare-up of his service-connected gout, such as pain, excess fatigability, and limitation to range of motion, can be separately attributed to his other service-connected conditions. As such, a remand is necessary to obtain a VA opinion regarding whether the symptomatology of the Veteran’s right ankle disability, other than gout, can be separated from his gout symptomatology when he is not experiencing an exacerbation of his gout. Lastly, a remand is warranted to obtain a retrospective opinion as the January 2008, February 2011, January 2014, September 2016, January 2017, and August 2017 VA examinations are inadequate in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain 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, 28 Vet. App. at 168. Here, the January 2008, February 2011, January 2014, September 2016, and January 2017 examinations did not specify whether active and passive motion were tested or whether the results provided were weight-bearing or non-weight-bearing. See January 2008 VA Examination; February 2011 VA Examination; January 2014 VA Ankle Conditions DBQ; September 2016 VA Ankle Conditions DBQ; January 2017 VA Ankle Conditions DBQ. Additionally, in Sharp, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their severity, frequency, and duration, name the precipitating and alleviating factors, and estimate, per the veteran, to what extent, if any, they affect functional impact. See Sharp, 29 Vet. App. at 34. Here, the January 2008 and February 2011 examinations were silent with respect to flare-ups. See January 2008 VA Examination; February 2011 VA Examination. Though the January 2014 noted that the Veteran experienced flare-ups of gout every two months, it was silent as to whether the Veteran experienced flare-ups of his other right ankle disabilities. See January 2014 Ankle Conditions DBQ. Likewise, though the September 2016 noted that the Veteran experiences flare-ups of his right ankle disabilities other than gout, no information was provided as to the frequency or duration of such flare-ups, or to what extent, if any, they affect functional impact. See September 2016 VA Ankle Conditions DBQ. Similarly, though the January 2017 and February 2019 examinations noted that, during flare-ups, the Veteran experiences functional loss due to pain, weakness, and lack of endurance, it did not specify which of the Veteran’s right ankle disabilities experience flare-ups, nor did it provide information as to the frequency or duration of such flare-ups or the extent they affect functional impact. See January 2017 VA Ankle Conditions DBQ; February 2019 VA Ankle Conditions DBQ. While the August 2017 examination noted flare-ups and opined as to the extent they affect functional impairment, it did not specify which of the Veteran’s right ankle disabilities experiences flare-ups, nor did it provide information as to the frequency or duration of such flare-ups. See August 2017 VA Ankle Conditions DBQ. 2. Entitlement to an initial rating in excess of 20 percent for bilateral great toe disability, for the period prior to September 19, 2016, is remanded. The Board sincerely regrets the delay associated with this remand, particularly in light of the extensive procedural history set forth above. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the AOJ has not substantially complied with the February 2019 remand directives. See Stegall v. West, 1 Vet. App. 368, 271 (1998). In February 2019, the Board instructed the AOJ to obtain an addendum opinion regarding the severity of this disability. As part of the opinion, the Board instructed the examiner to determine whether the Veteran’s bilateral great toe disability was productive of incapacitating exacerbations occurring three or more times per year for the period prior to September 19, 2016. In rendering this determination, the examiner was instructed to consider the Veteran’s lay statements and to indicate whether any medications that the Veteran was taking for foot pain affected the severity of his exacerbations. In July 2019, the AOJ obtained an addendum opinion in which the examiner stated that the Veteran’s great toe disability, secondary to gout, causes incapacitating exacerbations. However, the examiner did not identify the frequency of the exacerbations prior to September 19, 2016. Indeed, the examiner’s rationale appears to rely exclusively on evidence regarding the severity of his condition after September 19, 2016. For example, in support of her finding the determination the examiner cited a January 2017 VA examination. Likewise, while the examiner cited the statements made by the Veteran in the January 2017 VA examination, she did not address the Veteran’s other lay statements regarding the severity of his great toe disability, including those made prior to September 19, 2016, such as: a November 2008 statement that the swelling and pain makes it impossible to walk even short distances at times; a February 2011 statement that he experiences swelling, weakness, and pain when standing or walking; a July 2011 statement that he experiences flare-ups at night in which the joint becomes red and is painful, more so if touched; and a January 2014 statement that he experiences gout flare-ups in his great toes every two months, lasting three to seven days. See July 2019 VA Addendum DBQ; November 2008 Correspondence; February 2011 VA Examination; July 2011 VA Form 21-4138; January 2014 Non-degenerative Arthritis DBQ. Further, though the examiner identified and discussed the medications that the Veteran was taking for his foot pain at the time of the examination, she did not identify or discuss any medications that were taken prior to September 19, 2016. See July 2019 VA Addendum DBQ. As the Board cannot find substantial compliance with the July 2019 remand directives, a remand is necessary to allow the AOJ to provide VA examinations that complies with the Board’s remand directives. See Stegall v. West, supra. Even if the Board could find substantial compliance with the July 2019 remand directives, a remand would nonetheless be necessary. As noted above, in October 2015, the Court remanded these matters, in part, because the Board failed to discuss whether a separate rating for gout was warranted. In a January 2017 VA examination, the examiner stated that was not possible to separate the symptoms attributable to gout from those attributable to his other conditions. In making this determination, the examiner stated that, during flare-ups, there may be additional symptoms of excessive heat, more severe pain, and swelling superimposed on his baseline pain from the other conditions. See January 2017 VA Foot Conditions DBQ. However, this suggests that the symptoms the Veteran experiences when he is not experiencing a flare-up of his service-connected gout, such as pain, excess fatigability, and limitation to range of motion, can be separately attributed to his other service-connected conditions. As such, a remand is necessary to obtain a VA opinion regarding whether the symptomatology of the Veteran’s right ankle and bilateral great toe disabilities, other than gout, can be separated from his gout symptomatology when he is not experiencing an exacerbation of his gout. Lastly, a remand is warranted to obtain a retrospective opinion as the January 2008, February 2011, and January 2014 are inadequate in light of Correia and Sharp. As discussed above, in Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain 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, 28 Vet. App. At 168. Here, the January 2008, February 2011, and January 2014 examinations did not specify whether active and passive motion were tested or whether the results are weight-bearing or non-weight-bearing. See January 2008 VA Examination; February 2011 VA Examination; January 2014 VA Foot Miscellaneous DBQ. Additionally, in Sharp, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their severity, frequency, and duration, name the precipitating and alleviating factors, and estimate, per the veteran, to what extent, if any, they affect functional impact. See Sharp, 29 Vet. App. at 34. Here, the January 2008, February 2011, and January 2014 examinations are silent with respect to flare-ups. See January 2008 VA Examination; February 2011 VA Examination; January 2014 VA Foot Miscellaneous DBQ. In sum, the Board finds that a remand is necessary to provide the Veteran with a VA examination that considers and addresses the severity of his right ankle disability throughout the appeal period and the severity of his bilateral great toe disability prior to September 19, 2016, that identifies the effects any medication(s) the Veteran has taken for his foot conditions have had on his gout exacerbations, and that determines whether the Veteran’s gout symptomatology can be separated from his other conditions. Accordingly, the matters are REMANDED for the following action: 1. Obtain and associate with the electronic claims file any outstanding VA treatment records from July 2019 to current. 2. After completing the above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to determine the severity of the Veteran’s right ankle disability and bilateral great toe disability. The entire claims file must be provided to, and reviewed by, the examiner. Any indicated studies or evaluations should be performed. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran an examination. The examiner is asked to: (a.) Obtain the Veteran’s lay history, including employment and the onset and development of symptomatology, to include flare-ups and exacerbations. (b.) Determine whether the Veteran’s gout symptomatology is distinct and separate from the symptomatology associated with the Veteran’s other service-connected right ankle and bilateral great toe conditions, both during and absent gout exacerbations. If there are separate manifestations, please describe the symptoms specifically associated with the Veteran’s gout and those symptoms specifically associated with the Veteran’s other conditions. If it is not possible to separate the symptomatology, please state why not and whether, and to what extent, the symptoms are overlapping. (c.) Determine the range of motion (ROM) of the right and left ankle on active and passive motion, with weight-bearing and with non-weight-bearing, on both an initial and after repetitive use basis. FOR EACH ROM, THE EXAMINER ASKED TO EXPLICITLY IDENTIFY THE DEGREE IN WHICH PAIN IS FIRST EVIDENCED BY THE VETERAN’S VISIBLE BEHAVIOR. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, a thorough explanation should be provided. The examiner is asked to explicitly address whether any ROM limitation detected in the examination is attributable to the Veteran’s gout. (d.) Identify the nature and severity of all current manifestations of the Veteran’s service-connected right ankle and bilateral great toe disabilities. The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of additional ROM loss, if possible, and the examiner should state whether such limitation is mild, moderate, or severe in nature. Additional limitation following repetitive use over time, if any, must also be noted. (e.) If the Veteran described flare-ups that are attributable to any service-connected right ankle or bilateral great toe disability other than gout, after documenting the frequency, duration, and severity thereof, express an opinion as to whether there would be additional functional impairments during such flare-ups. (f.) For the period prior to September 19, 2016, determine the frequency and duration of exacerbations of the Veteran’s gout. In rendering this opinion, clearly indicate whether any medications that the Veteran was taking for foot pain affected the severity of his exacerbations. List all medication and clearly explain how each medication affects the severity of his exacerbations, if any. (g.) To the extent possible, provide a RETROSPECTIVE OPINION, utilizing the Veteran’s medical records and lay history, and opine as to the severity of the Veteran’s service-connected right ankle disability and bilateral great toe disability from Jul 1, 2008 to current. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to ROM, if possible, and the examiner should state whether such limitation is mild, moderate, or severe in nature. If the examiner is unable to render such an opinion, the examiner should specifically state why and provide a rationale for the determination. Any opinion expressed by the examiner MUST be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. 3. The AOJ MUST review the claims file and ensure that the foregoing development action has been completed in full. If any action is incomplete, the appropriate corrective action MUST be implemented. If any report or opinion does not include adequate responses to the specific reports or opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.