Citation Nr: 20044916 Decision Date: 07/06/20 Archive Date: 07/06/20 DOCKET NO. 10-23 379 DATE: July 6, 2020 REMANDED Entitlement to an initial rating in excess of 10 percent for left achilles/ankle tendonitis (hereinafter left ankle disability), prior to May 1, 2017, is remanded. Entitlement to an initial rating in excess of 10 percent for right achilles/ankle tendonitis (hereinafter right ankle disability), prior to May 1, 2017, is remanded. Entitlement to a rating in excess of 20 percent for left ankle disability, from May 1, 2017, is remanded. Entitlement to a rating in excess of 20 percent for right ankle disability, from May 1, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1992 to May 1999. The Veteran has a 100 percent combined schedular disability rating effective since February 9, 2011. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A July 2014 Board decision denied the Veteran a rating in excess of 30 percent for plantar fasciitis of the left and right foot. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion), and, in a March 2015 Court Order, the Court granted the Joint Motion, partially vacating the Board’s July 2014 decision and remanding the matter for compliance with the Joint Motion. In September 2015, the Board remanded the claims of entitlement to a rating in excess of 30 percent for plantar fasciitis of the left and right foot, to include entitlement to separate ratings for left and right ankle disabilities. An August 2016 rating decision granted service connection for left and right ankle disabilities, as secondary to plantar fasciitis of the left and right foot, with an evaluation of 10 percent, separately, effective October 31, 2005. A May 2018 Board decision denied the Veteran a rating in excess of 30 percent for plantar fasciitis of the left and right foot. The Veteran appealed to the Court. The parties submitted a Joint Motion, and, in a March 2019 Court Order, the Court granted the Joint Motion, partially vacating the Board’s May 2018 decision and remanding the matter for compliance with the Joint Motion. In August 2019, the Board remanded the claims of entitlement to an initial rating in excess of 10 percent for left and right ankle disabilities. A January 2020 rating decision granted a rating of 20 percent, separately, for the Veteran’s left and right ankle disabilities, effective May 1, 2017. Lastly, the Board notes that in September 2013, the Veteran testified before a Veterans Law Judge (VLJ); a transcript of the hearing is associated with the record. In November 2017, VA advised the Veteran that the VLJ before whom he testified is no longer with the Board and offered him a hearing before a new VLJ. In December 2017, the Veteran responded that he did not wish to appear at another Board hearing and requested that his appeal be considered on the evidence of record. 1. Entitlement to an initial rating in excess of 10 percent for left ankle disability, prior to May 1, 2017, is remanded. 2. Entitlement to an initial rating in excess of 10 percent for right ankle disability, prior to May 1, 2017, is remanded. 3. Entitlement to a rating in excess of 20 percent for left ankle disability, from May 1, 2017, is remanded. 4. Entitlement to a rating in excess of 20 percent for right ankle disability, from May 1, 2017, is remanded. Issues 1-4. The Veteran’s representative contends that the Veteran is entitled to a 30 percent rating for his left and right ankle disabilities, effective May 1, 2017. In support of this contention, the representative directs the Board to a May 2017 VA examination report reflecting that the Veteran had bilateral ankle ankylosis and dorsiflexion at 5 degrees. See Appellate Brief (May 2020). For reasons explained below, the Board finds that remand is necessary. The Board notes that the Veteran’s bilateral ankle disabilities are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5271. The Veteran’s disability is not specifically listed in the Rating Schedule; therefore, it is rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related. Hyphenated codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 5271, a 10 percent rating is assigned for a moderate limited motion of the ankle and a 20 percent rating for a marked limited motion of the ankle. The terms "moderate," and "marked" are not defined in the Rating Schedule, but the Rating Schedule does show that for the ankle the normal range of plantar flexion is from 0 to 45 degrees, and the normal range of dorsiflexion is from 0 to 20 degrees. 38 C.F.R. § 4.71a, Plate II. Ankle ankylosis in plantar flexion of less than 30 degrees is assigned a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Ratings of 30 and 40 percent are available when there is ankylosis of the ankle in plantar flexion greater than 30 degrees, in dorsiflexion between 0 and 10 degrees, or with abduction, adduction, inversion, or eversion deformity. Id. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007); Augustine v. Principi, 18 Vet. App. 505, 506 (2006). The record reflects that the Veteran underwent VA examinations for his ankle disabilities in August 2016, May 2017, and October 2019. The Board has reviewed those examination reports and finds that they are not adequate. The VA examination reports are inadequate for rating purposes because they do not reveal that any passive, weight-bearing or non-weight-bearing range of motion (ROM) testing was conducted. The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), has 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. Id. at 168. Consequently, remand is warranted for another VA examination that fully satisfies the requirements of Correia. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, remand is also necessary for clarification of conflicting evidence. In this regard, the May 2017 VA examination report reflects a finding of ankylosis of the ankles of plantar flexion at 20 degrees. Initial ROM results, on the other hand, reflect findings of: Plantar flexion from 0 to 5 degrees and dorsiflexion from 0 to 5 degrees for both ankles. Next, the October 2019 VA examination report reflects a negative finding for ankle ankylosis and ROM testing of plantar flexion from 0 to 5 degrees and dorsiflexion from 0 to 5 degrees for both ankles. As noted above, a 30 percent rating is warranted if there is evidence of ankle ankylosis in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. Given the conflicting evidence for ankle ankylosis, the Board finds that remand is also necessary for clarification of the evidence. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence . . . is essential for a proper appellate decision”). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following actions: 1. Obtain all VA treatment records dated from January 2020 to the Present. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected ankle disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (a) Test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (b) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Retrospective Findings (c) Following a review of the record, the examiner should provide retrospective findings in regard to pain on ROM testing and an estimation of functional loss per Correia as follows: (i) For the October 2019 VA examination, the examiner should estimate the amount in degrees of ROM lost due to pain in both weightbearing and non-weightbearing positions, and on both active and passive motion based on the evidence of record and the Veteran’s statements. (ii) For the May 2017 VA examination, the examiner should estimate the amount in degrees of ROM lost due to pain in both weightbearing and non-weightbearing positions, and on both active and passive motion based on the evidence of record and the Veteran’s statements. (iii) For the August 2016 VA examination, the examiner should estimate the amount in degrees of ROM lost due to pain in both weightbearing and non-weightbearing positions, and on both active and passive motion based on the evidence of record and the Veteran’s statements. Ankle Ankylosis (d) Following a review of the record, the examiner should provide a medical opinion in regard to ankle ankylosis. (i) Whether ankylosis of either ankle is at least as likely as not is, or was, present during, or approximate to, the appeal period (i.e. since 2004). Consider and expressly address the May 2017 VA examination report’s finding for ankylosis of the ankles of plantar flexion at 20 degrees. Explain. (ii) If so, indicate the (a) date, (b) severity of ankylosis, and (c) side affected. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.