Citation Nr: 20046570 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 07-27 982 DATE: July 13, 2020 ORDER Entitlement to an increased rating of 20 percent, but not higher, for a right ankle disability, effective August 29, 2007, but not earlier, is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Effective August 29, 2007, the date the claim was first filed, the Veteran's right ankle disability was manifested by marked limited range of motion and pain. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 20 percent, but not higher, for a right ankle disability, effective August 29, 2007, but not earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1974 to January 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2008 rating decision from the Department of Veterans Affairs (VA) office Regional Office (RO) in St. Petersburg, Florida. In September 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. In July 2009, December 2014, and July 2017, the Board remanded this claim to the Agency of Original Jurisdiction for additional action. During the course of this appeal, an August 2018 rating decision established service connection for tinnitus, with 10 percent rating, effective May 25, 2007. Therefore, the claim for service connection for tinnitus, previously the subject of appeal, has been resolved in the Veteran’s favor, and there is no longer a case in controversy for Appellate consideration as to that claim. 1. Entitlement to an increased rating of 20 percent disabling, but no higher, for a right ankle disability, effective August 29, 2007, but no earlier, is granted. Disability ratings are based on VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. A rating is assigned by comparing the extent to which a Veteran’s service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran’s symptomatology, with the criteria for the percentage ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2. If two ratings are potentially applicable, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran’s favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks a higher rating for a service-connected right ankle disability. The Veteran’s residuals of an old right ankle sprain with some degenerative arthritis is currently rated 0 percent disabling, effective August 29, 2007 and 10 percent disabling, effective July 15, 2010, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under the criteria of Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of motion, and a 20 percent rating is assigned for marked limitation of motion. A 20 percent rating is the maximum rating available under Diagnostic Code 5271. The words moderate, moderately severe, and marked, as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, so that Board decisions are equitable and just. 38 C.F.R. § 4.6. Normal range of ankle motion is from 20 degrees of dorsiflexion to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. An August 2007 MRI of the right ankle found a partial tear of the deltoid ligament and probable chronic old tear of the posterior talofibular ligament. The MRI was ordered because of the Veteran's complaints of pain. During private examination in August 2007, the Veteran complained of constant right ankle pain and swelling. The examiner noted the severity of the condition as being extreme. On physical examination, the examiner noted mild pain on palpation, with no evidence of clubbing, cyanosis, inflammation, petechiae, ischemia, or infection. The Veteran was diagnosed with osteoarthritis that resulted in pain, abnormal gait, and difficulty walking. During VA examination in February 2008, the Veteran was not found to have ankle pain, weakness, stiffness, swelling, heat or redness, instability, locking, fatigability, lack of endurance, arthritis, dislocation or recurrent subluxation. The Veteran's dorsiflexion was to 20 degrees, plantar flexion to 45, inversion to 30 degrees, and eversion to 20 degrees. The Veteran did not have an abnormal gait or posture and did not have any ankylosis. The Veteran also did not experience flare-ups or use any assistive devices. Diagnostic testing found signs of arthritis, but the right ankle tests were all deemed normal. In an August 2008 primary care nursing note, the Veteran was noted as complaining of constant, aching, sharp, shooting right ankle pain. In a July 2010 urgent care note, the Veteran complained of right ankle pain. The Veteran denied trauma or injury, and no redness, discharges, or lacerations were noted. The Veteran was ambulatory and able to bear weight. He had full range of motion in terms of eversion and inversion, and the joint was non-tender. During VA examination in September 2011, the examiner found range of motion in the right ankle to 20 degrees or greater in dorsiflexion, and 45 degrees or greater in plantar flexion. The Veteran was not found to have additional loss of function or range of motion after repetitive use testing and did not report having flare-ups. The Veteran did not have ankylosis of the ankle, subtalar, or tarsal joint. The Veteran was also not found to have or ever have shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus) or had a talectomy (astragalectomy). The Veteran did not have localized tenderness or pain on palpation of the joints or soft tissue of the ankle. The Veteran mainly complained of pain that was worse when walking and not relieved with medication. During a September 2016 Board hearing, the Veteran complained of constant 6 out of 10 ankle pain, stiffness, and swelling. The Veteran noted using a walker and cane to aid in locomotion. The Veteran stated that he took pain medication twice a day and used heat pads to relieve the pain, which caused him to never experience incapacitation as a result of the ankle disability. The Board acknowledges that the Veteran underwent VA examination in October 2017, however, the Board finds that examination to be incomplete as the examiner did not address range of motion as it pertained to flare-ups. Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, excess motion, painful motion, and on flare up. 38 C.F.R. §§ 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the October 2017 VA examination is incomplete and inadequate for rating purposes and will not be considered in conjunction with this appeal. During VA examination in July 2019, the examiner found range of motion in the right ankle to 8 degrees in dorsiflexion, and 11 degrees in plantar flexion. The Veteran did not have ankylosis of the ankle, subtalar, or tarsal joint. The Veteran was also not found to have or ever have shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus) or had a talectomy (astragalectomy). The Veteran had moderate localized tenderness or pain on palpation of the joints or soft tissue of the ankle. The Veteran mainly complained of pain, swelling, and weakness that was aggravated by prolonged sitting, driving, standing, and walking. The Veteran constantly used a cane to aid in locomotion for stability and to decrease pain. On examination, the examiner stated that the right ankle arthritis contributed to increased functional loss during repetitive activity and flare-ups due to pain, fatigue, weakness, lack of endurance, and incoordination. After consideration of all of the evidence, the Board finds that, effective August 29, 2007, the Veteran's right ankle disability most closely approximates marked limitation of motion warranting a 20 percent rating. Normal range of motion of the ankle is to 20 degrees dorsiflexion and 45 degrees plantar flexion, for a total range of motion of 65 degrees. During the entire appeal period, the Veteran has complained of severe right ankle pain requiring frequent follow up treatment and, on the most recent examination, the Veteran was noted as having significant limitation of motion, with range of motion in the right ankle to 8 degrees in dorsiflexion, and 11 degrees in plantar flexion after repeated use and during flare-up. During the entire appeal period, the Veteran’s right ankle disability was mainly characterized by constant severe pain resulting in function loss that limited the Veteran's ability to perform walk, stand, and sit for prolonged periods. A 20 percent rating is the maximum benefit available under Diagnostic Code 5271. While the Board notes that previous examinations found greater levels of right ankle motion, those examinations and medical reports did not consider increased limitation of function due to pain and flare up. The evidence shows a higher level of limitation of motion due to pain and flare-up, necessitating the use of assistive devices for ambulation. In the absence of limitation of motion, degenerative arthritis is rated 10 percent with X-ray evidence of involvement of two or more major joints, or two or more minor joint groups. A higher, 20 percent rating, is assigned for degenerative arthritis with X-ray evidence of involvement of two or more major joints, or two or more minor joint groups, with occasional incapacitating exacerbations. Ratings for arthritis cannot be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran’s right ankle disability has been rated based on limitation of motion. Therefore, a higher or separate rating under 38 C.F.R. § 4.71a, Diagnostic Code 5003 is not warranted. The Veteran does not have ankylosis of the right ankle to warrant a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5270. In addition, there is no evidence of ankylosis of the subastralgar or tarsal joint (Diagnostic Code 5272); malunion of Os calcis or astragalus (Diagnostic Code 5273); or astragalectomy (Diagnostic Code 5274). Thus, a higher or separate rating under any of the applicable Diagnostic Codes rating codes is not warranted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Accordingly, the Board finds that entitlement to an increased rating of 20 percent disabling, but not higher, for a right ankle disability, effective August 29, 2007, but not earlier, is warranted. To that extent, the claim for an increased rating is granted. The preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for bilateral hearing loss. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that current bilateral hearing loss disability is the result of in-service noise exposure. Specifically, the Veteran believes that exposure to acoustic trauma from artillery fire and while serving as a truck mechanic caused a current hearing loss disability. During VA examination in May 2017, the examiner found that it was not at least as likely than not (less than 50 percent probability) that right ear hearing loss was caused by or a result of an event in service. The examiner supported that conclusion by stating that the records indicate normal hearing at entrance and separation from service. Therefore, it was less likely than not that hearing loss in the right ear was caused by or a result of an event in service. The examiner found that the Veteran's left ear hearing loss, which existed prior to service, was not aggravated beyond the normal progression in service. The examiner discussed the entrance and separation audiograms and found that a slight shift was not considered significant according to VA standards. With that information considered and the military occupations specialty of truck mechanic during service, the examined found that preexisting hearing loss was less likely as not aggravated beyond normal progression in military service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment in-service is not adequate. A lack of medical evidence in-service treatment records does not preclude service connection. Buchanan v Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (flack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim). As the May 2019 VA examiner relied on the absence of symptoms or treatment in-service for the negative opinion concerning the demonstrated disability, the opinion is inadequate. In addition, the examiner found the preexisting hearing loss was less likely than not aggravated by service. However, the proper standard of review is whether it is clear and unmistakable that a preexisting disability was not aggravated during service. Those are a pre-decisional duty to assist error. Thus, remand is necessary for an adequate etiology opinion regarding bilateral hearing loss. VA attention has been directed to a sponsored Institute of Medicine (IOM) report on delayed onset hearing loss. While the report states that “based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely” that the onset of hearing loss begins years after noise exposure occurs, that statement does not indicate the full extent of the report’s findings pertinent to the matter. Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc’d with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 47 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005). While a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc’d with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 203-04 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005. Therefore, the IOM report’s language may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss such that a VA examiner’s citation of the report should contemplate all of the pertinent aspects of its findings. Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to treatment for hearing loss disability, including the names and addresses of all health care providers whose records have not already been provided to VA. On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran.  38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA audiology examination, with an examiner who has not previously examined the Veteran, to diagnose and obtain an opinion regarding the etiology of any hearing loss disability. The examiner must review the claims file, to include this Remand in its entirety; the Veteran’s lay statements, including hearing testimony, concerning in-service noise exposure and hearing loss symptoms; the previous VA examination; and the IOM report concerning an individual’s delayed awareness on the effects on hearing from noise, and the onset of current symptomatology, and should indicate review of the file in the examination report. The examiner should opine whether it is clear and unmistakable (undebatable) that any diagnosed hearing disability in either ear preexisted the Veteran’s entrance to service. The examiner should cite to records that establish preexistence of hearing loss in either ear. If any diagnosed hearing disability in either ear clearly and unmistakably preexisted service, the examiner should opine whether it is clear and unmistakable that the hearing disability was not aggravated during the Veteran’s service. The examiner should reference the evidence that supports that opinion. The examiner should state whether any preexisting hearing disability increased in severity during service and if so, whether any increase in severity represented, or was more than, the natural progress of the disorder. If any diagnosed hearing disability did not clearly and unmistakably preexist service, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any portion of the Veteran’s hearing loss is etiologically related to active service or any event, disease, or injury during service, including whether any hearing disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by any service-connected disability or treatment for any service-connected disability, to include tinnitus, or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability, to include tinnitus. The examiner is advised that the Veteran is competent to report his symptoms during and since service and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. The examiner must consider and discuss those lay statements and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service record. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.