Citation Nr: 20049044 Decision Date: 07/22/20 Archive Date: 07/22/20 DOCKET NO. 14-31 667A DATE: July 22, 2020 ORDER Entitlement to a rating in excess of 10 percent for a left ankle disorder prior to June 12, 2019 is denied. Entitlement to a rating in excess of 20 percent for a left ankle disorder from June 12, 2019 is denied. Entitlement to a rating in excess of 10 percent for a right ankle disorder prior to June 12, 2019 is denied. Entitlement to a rating of 20 percent, but no more, for a right ankle disorder from June 12, 2019 is granted. Entitlement to an initial rating of 10 percent evaluation for bilateral pes planus prior to June 12, 2019 is granted. Entitlement to an initial rating in excess of 10 percent for bilateral pes planus is denied. REMANDED Entitlement to a total disability rating on the basis of individual unemployability as due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to June 12, 2019, the Veteran’s left ankle disorder was productive of no more than moderate limitation of motion with pain and popping. 2. From June 12, 2019, the Veteran’s left ankle disorder was productive of marked limitation of motion with pain and popping. 3. Prior to June 12, 2019, the Veteran’s right ankle disorder was productive of no more than moderate limitation of motion with pain and popping. 4. From June 12, 2019, the Veteran’s right ankle disorder was productive of marked limitation of motion with pain and popping. 5. For the entirety of the appeal, the Veteran’s bilateral pes planus was shown to be manifested by no more than moderate disability with decreased longitudinal arch height on weightbearing bilaterally, pronation bilaterally, and lower extremity deformity of the left foot only. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left ankle disorder prior to June 12, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5271. 2. The criteria for a rating in excess of 20 percent for a left ankle disorder from June 12, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5271. 3. The criteria for a rating in excess of 10 percent for a right ankle disorder prior to June 12, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 4. The criteria for a rating of 20 percent, but no more, for a right ankle disorder from June 12, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 5. For the period prior to June 12, 2019, the criteria for an initial 10 percent rating for bilateral pes planus have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5276. 6. The criteria for an initial rating in excess of 10 percent for bilateral pes planus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from August 1983 to July 1993, and the Army from March 2004 to June 2005. These matters were last before the Board in September 2018, whereupon they were remanded to the Regional Office for further development of the record. In an April 2020 rating decision, the Regional Office granted a 20 percent rating for left ankle instability and separate 10 percent ratings for left and right pes planus, all effective June 12, 2019. The Regional Office also promulgated a corresponding April 2020 supplemental statement of the case continuing the denial of all other increased rating claims remanded by the Board. The case was then returned to the Board for its adjudication. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2018; a copy of the transcript of that hearing is of record. The TDIU claim has been raised by the Veteran and by the record during the pendency of this appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board does note that the Veteran has a pending appeal for TDIU in a separate claim that is currently before the Agency of Original Jurisdiction (AOJ); however, as the issue of entitlement to TDIU was raised by the record during the appeal presently before the Board, the Board has an obligation to address the claim, as it relates to the increased ratings claims that were certified for its adjudication. However, as detailed below, the Board cannot adjudicate the TDIU claim before it as the AOJ is currently undertaking development that may have a bearing on the Board’s decision; as such, the TDIU claim is being remanded pursuant to the directives outlined below. This appeal raises no other issues, however. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. 1. Entitlement to increased ratings for left and right ankle disorders The Veteran is service connected for left and right ankle disorders. Currently, the left ankle disorder is rated as 10 percent disabling until June 12, 2019, whereupon the rating was increased to 20 percent. The right ankle disorder is assigned a 10 percent rating for the entirety of the appeal period. The Veteran seeks a rating in excess of those assigned. To that end, the Board notes that the relevant period on appeal in an increased rating claim includes the one-year period prior to the date of the claim as an increase can be effective during this time provided that said increase was “factually ascertainable”. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). Accordingly, the Board will consider all of the evidence beginning up to a year prior to September 28, 2011, in order to ascertain whether increased ratings are warranted for either the left or the right ankle disorders at any point during the appeal. The left ankle disorder is rated pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5003-5271, while the right ankle disorder is rated only under Diagnostic Code 5271. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. As such, the Regional Office has indicated with the use of the hyphenated diagnostic code here that the degenerative arthritis demonstrated in the left ankle is being evaluated as limitation of motion under Diagnostic Code 5271. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Diagnostic Code 5271 provides a 10 percent rating for moderate limitation of motion, and a 20 percent rating for marked limitation of motion. 38 C.F.R. § 4.71a. Normal range motion of the ankle, for VA compensation purposes, is from zero degrees ankle dorsiflexion to 20 degrees ankle dorsiflexion and from zero degrees ankle plantar flexion to 45 degrees ankle plantar flexion. 38 C.F.R. § 4.71a, Plate II. The descriptive words “mild,” “moderate,” 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 for “equitable and just decisions.” 38 C.F.R. § 4.6. During the appeal period, the severity of the bilateral ankle disorders was first evaluated in an April 2012 examination, during which the Veteran reported experiencing increasing pain bilaterally throughout his ankles resulting in difficulty with ambulation, standing or climbing. He did not endorse experiencing flare-ups of ankle pain. Range of motion testing revealed flexion limited to 40 degrees bilaterally and dorsiflexion limited to 10 degrees bilaterally. After repetitive use testing, flexion was reduced to 35 degrees bilaterally. The examiner commented that the Veteran’s bilateral ankle symptoms would result in less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting standing and weightbearing. Testing also revealed localized tenderness or pain on palpation bilaterally. The examiner did not endorse any ankylosis or instability. Ultimately, the examiner did not find that the ankle conditions bilaterally would result in any functional occupational impairment. The severity of the bilateral ankle disorders was more recently evaluated in an June 2019 examination, during which the Veteran reported experiencing pain and popping bilaterally throughout his ankles resulting in difficulty with ambulation. He reported experiencing flare-ups of ankle pain about once per week that were associated with physical activity. Range of motion testing revealed flexion limited to five degrees on the left and 10 degrees on the right, while dorsiflexion was limited to 5 degrees bilaterally. There was no additional loss of range of motion after repetitive use testing. The examiner did note evidence of pain with weightbearing, although there was no evidence of crepitus or localized tenderness of either ankle. The examiner was not able to test for range of motion following repeated usage of either ankle or during a flare-up; however, in her estimation the Veteran would not experience any additional loss of range of motion during a flare-up or following repeated use. The examiner also did not endorse the existence of ankylosis, instability or other ankle disorders. Ultimately, it was the examiner’s opinion that the bilateral ankle disorders would contribute to impairment of occupational functioning in the form of precluding prolonged standing and ambulation. A review of the available VA medical records shows that the Veteran has been receiving treatment for his bilateral ankle disorders for the entirety of the appeal period, to include the one year prior to the date of the increased rating claim. An August 2012 podiatry consultation report reflects that the Veteran detailed experiencing mild to moderate pain and popping in his bilateral ankles that almost resulted in his falling down while standing or walking. Subsequent records do show that the Veteran continued to complain of bilateral ankle pain and popping that made it difficult to stand and walk; however, at no point did any medical professional evaluate the limitation of motion as being marked. Treatment has consisted of physical therapy, steroid injections and the use of different assistive devices. An February 2018 X-ray examination revealed only mild degenerative changes of either foot. The Veteran submitted an evaluation dated in November 2016 from a Dr. P.Y, who noted that he examined the Veteran in person. According to Dr. P.Y., the Veteran experienced constant bilateral ankle pain that was intensified with ambulation and all weightbearing. Furthermore, Dr. P.Y. detailed that the ankles bilaterally would click and pop and give out randomly causing the Veteran to stumble and almost fall. Dr. P.Y. noted that dorsiflexion and plantar flexion were adequate bilaterally although he did endorse crepitus bilaterally. Inversion was hypermobile at 50 degrees on the left side and 45 degrees on the right, while eversion was hypo mobile at 10 degrees bilaterally. During the June 2018 hearing, the Veteran reported that his ankles regularly pop while walking, which causes him to stumble and fall. According to the Veteran, he fell about four or five times in the past year as due to his ankles. He also endorsed experiencing flare-ups of ankle pain bilaterally and swelling. Upon review of the record, the Board does not find that a rating in excess of 10 percent is warranted for the left ankle disorder prior to June 12, 2019, and while a 20 percent rating is warranted for the right ankle disorder from June 12, 2019, there is also insufficient evidence to support a rating in excess of 10 percent prior to June 12, 2019 for the right ankle. To begin, although the Board acknowledges that the Veteran has exhibited pain and popping throughout the ankles bilaterally for the entirety of the appeal, there is not objective evidence that the Veteran experienced marked limitation of ankle movement prior to June 2019 examination. At no point did a VA medical professional state as much, and various diagnostic testing during the appeal period, to include X-ray examinations, also did not show marked limitation of motion of either ankle. Indeed, Dr. P.Y. in the November 2011 evaluation found that dorsiflexion and plantar flexion were adequate bilaterally. Range of motion testing on the April 2012 examination did not reveal more than a slight reduction in dorsiflexion and plantar flexion. As for the period from June 12, 2019, the Board does find that a 20 percent rating is warranted for the right ankle. The June 2019 examination showed a significant reduction in dorsiflexion and plantar flexion of the right ankle when compared with the results of the April 2012 examination. Moreover, the examiner noted that the ankle disorders bilaterally would severely restrict prolonged walking or standing. Accordingly, the Board grants a 20 percent rating for the right ankle from the date of the June 2019 examination; however, prior to that date, there are not the objective medical findings sufficient to make a determination that the Veteran experienced more than moderate limitation of motion of the ankles bilaterally. In making this determination, the Board notes that it has reviewed the Veteran’s lay testimony but does not find that it reflects that his bilateral ankle disorders warranted the greater 20 percent rating at any point prior to the date of the June 2019 examination. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 208. Therefore, the Board finds that the assigned ratings, to include the newly assigned 20 percent rating for the right ankle from June 12, 2019, adequately contemplate the functional impairment resulting from the Veteran’s left and right ankle disorders. The 20 percent rating is the maximum available evaluation for the ankle disorders under Diagnostic Code 5271. The Board has considered other potentially applicable Diagnostic Codes from 5270 through 5274, but none of these other Codes are pertinent to this appeal, as the Veteran has not exhibited the particular manifestations of ankle impairment that pertain to those Codes. 2. Entitlement to increased ratings for bilateral pes planus The Veteran is service connected for left and right plantar fasciitis, rated bilaterally as noncompensable prior to June 12, 2019 and as 10 percent disabling therefrom. He seeks a rating in excess of those assigned for the entirety of the appeal. The ratings were assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under Code 5276, a 10 percent evaluation for bilateral pes planus is assigned when there are moderate flatfeet with weightbearing line over or medial to the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent evaluation is assigned for severe bilateral pes planus; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 50 percent rating, the maximum, is assigned when there is evidence of pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of tendo achilles on manipulation, not improved by orthopedic shoes or appliances. Id. The severity of the bilateral pes planus was first evaluated in an April 2012 VA examination, during which the Veteran reported experiencing foot pain bilaterally that was accentuated with use. He specifically denied experiencing pain on manipulation, swelling on use, calluses, or extreme tenderness, although he did acknowledge that the symptoms were relived with arch supports. An in-person evaluation revealed decreased longitudinal arch height on weightbearing bilaterally, marked deformity of the foot bilaterally, marked pronation bilaterally, and lower extremity deformity of the left foot only. The examiner also noted that the weightbearing line fell over or was medial to the great toe. The examiner also the Veteran used regular orthotics. It was the examiner’s impression that the pes planus would not result in any functional occupational impairment. The Veteran was more recently afforded a VA examination in June 2019 to evaluate the severity of the bilateral pes planus, during which he denied experiencing foot pain and instead attributed his lower extremity pain mainly to his back, knees and ankles. That being said, he endorsed experiencing some flare-ups of bilateral foot pain which impaired his ability to walk normally and for long period of time. He also denied experiencing swelling on use, calluses, or extreme tenderness, although he did acknowledge pain on manipulation that was relived with arch supports. An in-person evaluation revealed decreased longitudinal arch height on weightbearing bilaterally but no other indicia of impairment. It was the examiner’s impression that the pes planus would not result in any functional occupational impairment. A review of the available VA medical records shows that the Veteran has been receiving treatment for his bilateral pes planus for the entirety of the appeal period. An August 2012 podiatry consultation report reflects that the Veteran detailed experiencing pain in both of his feet and was evaluated as having severe bilateral pes planus. Subsequent records do show that the Veteran continued to have bilateral pes planus listed as an active disability with treatment consisting of the use of custom orthotics. During the June 2018 hearing, the Veteran reported that he wore custom orthotics to assist with walking; that being said, he acknowledged that he could only walk 300 yards comfortably. He also stated that, although he did not notice it, other people including his wife told him that he dragged his feet. Upon consideration of the record, the Board finds that an initial evaluation of 10 percent is warranted for bilateral pes planus for the entirety of the appeal. Although the Regional Office considered the pes planus to be asymptomatic as per the April 2012 VA examination, the Board does not concur, as the examiner found evidence of decreased longitudinal arch height on weightbearing bilaterally, marked deformity of the foot bilaterally, marked pronation bilaterally, and lower extremity deformity of the left foot only. The April 2012 examiner also noted that the weightbearing line fell over or was medial to the great toe. Moreover, corresponding VA medical records reflect that the Veteran was experiencing bilateral foot pain, especially following ambulation, and was using custom orthotics at this time that he has continued to use ever since. Even if the Board were to conclude that the Veteran did not exhibit the typical indicia of disability stemming from the bilateral pes planus, the fact remains that he credibly reported experiencing foot pain bilaterally, and the April 2012 examination did reveal physical deformities, all of which strongly suggest that he is entitled to the minimum 10 percent rating for the bilateral pes planus for the entire period of the appeal. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202. That being said, the Board does not find that a 30 percent initial rating is warranted at any time during the appeal period. The April 2012 examiner did not find evidence of many of the indicia of the higher 30 percent rating, and the more contemporary June 2019 examiner found even less. Moreover, although the Board does acknowledge that the Veteran reported experiencing some bilateral foot pain during the June 2018 hearing, there is no corroboration of this foot pain in the objective medical evidence of record. Therefore, while the Board does find that the Veteran is entitled to a minimum 10 percent rating for the entirety of the appeal on the basis of his credible lay testimony, there is insufficient medical evidence in the record to support a 30 percent rating at any point during the appeal period. REASONS FOR REMAND Entitlement to TDIU is remanded. The issue of entitlement to TDIU must be remanded in order to provide the Veteran with notice and adjudication by the Agency of Original Jurisdiction in the first instance. Furthermore, in light of the current development being undertaken by the AOJ regarding the pending appeal for TDIU in a separate case, the Board concludes that it would be improper to adjudicate entitlement to TDIU prior to allowing for the AOJ to conclude its development of the record in support of the claim. The matters are REMANDED for the following action: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) notice letter regarding the TDIU claim and request that he provide information regarding all recent and relevant treatment pertaining to his service-connected disabilities. The Veteran should be encouraged to submit any additional relevant evidence in support of his assertion that his service-connected disabilities, specifically his left and right ankle disabilities as well as his left and right pes planus, prevent him from securing and following substantially gainful employment. 2. After providing the Veteran with an appropriate period of time to respond and allowing for all development of the record to be undertaken by the AOJ, adjudicate the TDIU claim. A Supplemental Statement of the Case should be issued if this claim is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.