Citation Nr: 20056871 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 15-23 975 DATE: August 27, 2020 ORDER Entitlement to an evaluation of 20 percent, but no higher, for right ankle lateral collateral ligament strain (right ankle strain) is granted. REMANDED Entitlement to an evaluation in excess of 30 percent for hypothyroidism is remanded. FINDING OF FACT After resolving reasonable doubt in the Veteran’s favor, his right ankle strain has manifested in marked limitation of motion, but not total functional loss. CONCLUSION OF LAW The criteria for entitlement to an evaluation of 20 percent, but no higher, for right ankle strain have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5271 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1997 to August 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2013 and December 2016 rating decisions by the Department of Veterans Affairs (VA). This case was remanded in July 2018 and February 2020 for further development; it has since been re-assigned to the undersigned. Entitlement to an evaluation in excess of 10 percent for right ankle strain. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, there must be consideration of functional loss caused by factors that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (“functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor…that actually limited motion” (emphasis removed)). Nonetheless, even when the background factors listed in §§ 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). The provisions of 38 C.F.R. § 4.59 acknowledge that a claimant’s disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. However, pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, 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 and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011). Standard motion of an ankle joint is from zero degrees to 20 degrees for dorsiflexion and zero degrees to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II. The Veteran’s right ankle strain is currently rated pursuant to Code 5271, for limited motion of the ankle. Pursuant to that Code, moderate limitation of motion is assigned a 10 percent evaluation, and a maximum 20 percent evaluation is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, Code 5271. The words “moderate,” and “marked,” are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The Board notes that the VA examinations of record are not compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). However, the Veteran is being assigned the maximum rating pursuant to Code 5271 and there is no evidence, including lay evidence, that the Veteran has ever had symptoms that manifest in actual ankylosis or functional loss similar to ankylosis. As a result, remanding for a new examination would have no reasonable possibility of substantiating the claim and is unnecessary. 38 C.F.R. § 3.159(d). During a December 2016 VA examination, the Veteran was noted to have dorsiflexion limited to 15 degrees and normal plantar flexion range of motion. He did not report flare-ups. During a June 2019 VA examination, dorsiflexion was noted to be limited to 10 degrees and plantar flexion limited to 30 degrees. Flare-ups would occur with prolonged standing and walking, after which he would have some aching and swelling. During a March 2020 VA examination, range of motion was the same as during the prior examination, but there was increasing pain and stiffness. The examination was conducted during a flare-up, and the Veteran had difficulty with prolonged walking, standing, sitting, and climbing stairs. After resolving reasonable doubt in his favor, the Board finds that the Veteran’s limitation of motion in his right ankle was marked. Notably, the Veteran had limited range of motion for both dorsiflexion and plantar flexion during his June 2019 and March 2020 VA examinations, which outweigh the less severe range of motion measurements in December 2016. A staged rating is inappropriate because the December 2016 VA examination is inadequate, and the Board may not rely solely on the range of motion measurements provided. The evidence also reflects functional loss for numerous activities, such as walking, standing, and climbing stairs. Thus, the Board finds that the Veteran’s functional loss and range of motion for his right ankle was marked, and a 20 percent rating is warranted. Code 5271 has a maximum rating of 20 percent. Rating pursuant to a different Code is inappropriate, as the Veteran is never noted to have ankylosis in his ankle, nor does the lay and medical evidence reflect that the Veteran was ever unable to completely move his right ankle or have functional loss that resulted in total loss of motion for his ankle. Thus, the Veteran is appropriately rated pursuant to Code 5271 and a rating in excess of 20 percent is not warranted. REASONS FOR REMAND Entitlement to an evaluation in excess of 30 percent for hypothyroidism is remanded. The rating criteria for evaluating hypothyroidism changed during the course of the appeal. See 38 C.F.R. § 4.119, Code 7903. The Board previously remanded this matter, in part, because a prior VA examination did not complete the section of the Disability Benefits Questionnaire (DBQ) for claims that began on or prior to December 9, 2017. See February 2020 Board remand. The March 2020 VA examiner made the same mistake. Thus, the Board must find that its remand was not complied with and remand for a new examination is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Regarding the rating criteria for hypothyroidism, the Veteran reported weight gain, chest tightness, and elevated blood pressure as possible manifestations of his hypothyroidism. See July 2013 correspondence. Additionally, he has been noted to have thyroid enlargement on previous exams. On remand, the examiner should discuss whether the Veteran’s reported symptoms are related to his service-connected disability and whether any thyroid enlargement is toxic. See 38 C.F.R. § 4.119, Codes 7901-7902. During the March 2020 VA examination, the examiner noted that the Veteran was receiving VA and private treatment, but such records were not sought. Thus, remand is necessary to obtain such records. The matters are REMANDED for the following action: 1. The AOJ should obtain, if possible, records of relevant private evaluations and treatment the Veteran has received. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 2. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from May 2016 to the present. 3. After the development in the first two directives is completed, the AOJ should arrange for an examination (or telehealth examination) of the Veteran to assess the current severity of his service-connected hypothyroidism. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disability. Specifically, the examiner is requested to respond to the following: (a.) The examiner is reminded that this claim predates December 10, 2017. (b.) Has the Veteran ever had cold intolerance, muscular weakness, cardiovascular involvement (including but not limited to hypotension, bradycardia, and pericardial effusion), mental disturbance (including, but not limited to, dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), sleepiness, or weight gain? The examiner must discuss the Veteran’s reports of weight gain, chest tightness, and elevated blood pressure. (c.) Has any thyroid enlargement during the appeal period been toxic? Please explain why. 4. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.