Citation Nr: 20047077 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 20-25 703 DATE: July 14, 2020 ORDER Entitlement to a 20 percent rating for left ankle, but no more, for residuals of fracture left tibia, is granted. Entitlement to a 50 percent rating, but no more, for headaches is granted. REMANDED Entitlement to service connection for a right leg condition is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left ankle disability has been manifested by marked limitation of motion. 2. Throughout the period on appeal, the Veteran’s headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating for left ankle, but no more, for residuals of fracture left tibia, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271. 2. The criteria for entitlement to a 50 percent rating, but no more, for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1956 to December 1959 and from January 1991 to July 1991. He appeals a March 2018 rating decision denying entitlement to increased ratings for his left ankle and headaches. During the pendency of the appeal, the Veteran was awarded an increased rating of 30 percent for his headaches in an April 2020 rating decision. As this does not represent a full grant of benefits on appeal, the issue of an increased rating for headaches is still on appeal. Increased Ratings The Veteran contends that the symptoms of his headache and left ankle disabilities warrant entitlement to higher disability ratings. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the present level of a disability for any rating claim, the Board must consider the possible application of “staged ratings” for diverse symptoms meeting the criteria for different ratings in distinct time periods during the course of the appeal, whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505 (2007); See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to a rating in excess of 10 percent for a left ankle disability The Veteran’s left ankle is rated under Diagnostic Code 5271. Under that Diagnostic Code, a 10 percent rating is warranted for moderate limitation of motion and a 20 percent evaluation is warranted for marked limitation of motion. The words “moderate” and “marked” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Upon examination in June 2017, a VA examiner noted that the Veteran’s limited range of motion in his left ankle resulted in instability of station, disturbance of locomotion, and interference with standing. As noted in an addendum opinion provided in September 2017, the VA examiner found the Veteran’s dorsiflexion was limited to 5 degrees. Importantly, as a result of his left ankle disability, the Veteran fell in July 2019 and ruptured his left quadricep tendon resulting in surgery. The Board finds the medical evidence of record demonstrates that the Veteran has marked limitation of motion in his left ankle. Evaluation by a qualified medical professional found that the Veteran’s dorsiflexion is limited to 5 degrees, adversely affecting his overall stability, including his ability to walk and stand. This has led to at least one serious fall causing further injury to the Veteran. As such, the Board finds the preponderance of the evidence shows that the Veteran meets the criteria for a 20 percent rating for limitation of motion for his left ankle. However, as a 20 percent rating is the highest rating allowed under Diagnostic Code 5271, a higher rating is not allowed for the Veteran’s left ankle disability. 2. Entitlement to a rating in excess of 30 percent for migraine headaches. The Veteran's migraines are rated under Diagnostic Code 8100. Under that Diagnostic Code, a 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned for characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is assigned where there are characteristic prostrating attacks averaging one in two months over the last several months. Where there are less frequent attacks, a non-compensable rating is assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board notes that the rating criteria do not define the term “prostrating." Clinically, “prostration” is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1531 (32nd ed. 2012). Upon examination in June 2017, the Veteran reported chronic headaches resulting in sensitivity to light and sound that lasted more than two days in duration, yet the VA examiner opined that the Veteran did not suffer from characteristic prostrating attacks. The examiner also noted that his headaches did not result in any functional limitations. However, the examiner based part of his reasoning on the fact that the Veteran was retired and thus, his work was unaffected by headaches. The Board notes that whether the Veteran is currently employed or not is immaterial when determining whether his headaches are productive of severe economic inadaptability. The Veteran is not precluded from seeking further employment in the future. In any event, the Veteran argued in a September 2017 lay statement that his headache symptoms are worse than is documented by VA examiners. Specifically, he contends that he must lie down in a dark room when a headache comes on and try to sleep it off. He asserts that his headaches make him physically weak and render him unable to function. The Board finds the Veteran’s lay statements regarding the severity of his headache symptoms to be credible and affords them more probative weight than that of the June 2017 VA examiner. He is competent to report symptoms that he can personally observe and feel, such as pain and weakness. See Layno v. Brown, 6 Vat. App. 465 (1994). His headaches occur frequently, result in extreme exhaustion and powerlessness, and would likely result in severe economic inadaptability. As such, the Board finds the criteria for a 50 percent rating for headaches have been met and the claim is granted. As a 50 percent rating is the highest rating allowed under Diagnostic Code 8100, a higher rating for the Veteran’s headache disability is not allowed. 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. REASONS FOR REMAND 3. Entitlement to service connection for a right leg condition is remanded. Additional clarification is required before the before the Board is able to adjudicate the issue related to the Veteran’s right leg disorder. Notably, despite his assertions, it is not clear what kind of disorder the Veteran has to his right leg. In this regard, the medical evidence of record does show a diagnosis and treatment for a left quadricep tendon rupture sustained when the Veteran’s left ankle caused him to fall in July 2019. However, an April 2017 treatment note indicates that the Veteran complained of “diffuse discomfort” in his right leg. Additionally, the Veteran submitted a February 2020 private medical opinion from Dr. B.D. declaring a link between the Veteran’s ruptured quadricep tendon and his service-connected left ankle disability. However, it is unclear how this relates to the right leg disorder on appeal. Therefore, clarification via a medical examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, in his June 2020 statement, the Veteran’s representative also indicated that there are treatment records with the Social Security Administration. As a result, the RO should ensure that such records are also obtained and included in the claims file. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The matter is REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. It should be requested of the Veteran to submit any outstanding private medical records pertaining to his right leg disability. Any outstanding VA treatment records should be associated with the claims file. 3. The RO should also obtain any records with the Social Security Administration, as applicable. 4. Schedule the Veteran for an examination regarding his right leg disorder symptoms. After a review of the evidence of record and an examination of the Veteran, the examiner is asked to answer the following questions: a. What is the precise nature of the Veteran right leg symptoms? b. Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s right leg symptoms are etiologically related to active duty service or to his service-connected left ankle disability? The complete rationale for all opinions should be set forth. The examiner is reminded that, even in the absence of a clinical diagnosis in the right leg, the above requested opinion is still necessary if symptoms reflecting limitation of function are shown. 5. After the above has been completed to the extent possible, as well as any other development deemed necessary by the RO, readjudicate the claim. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel