Citation Nr: 21001492 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-03 936 DATE: January 8, 2021 ORDER An initial rating in excess of 10 percent prior to February 6, 2020, for service-connected right ankle sprain is denied. A 20 percent rating from February 6, 2020, for service-connected right ankle sprain is granted, subject to the regulations governing the payment of monetary awards. An initial compensable rating prior to August 13, 2020, and a rating in excess of 30 percent from August 13, 2020, for service-connected headaches is denied. Service connection for a left leg disability, to include on a secondary basis, is denied. Service connection for a right leg disability, to include on a secondary basis, is denied. Service connection for a stomach disability is denied. FINDINGS OF FACT 1. From November 24, 2011, to February 6, 2020, the Veteran’s service-connected right ankle sprain did not result in marked symptomatology or limitation of motion. 2. Beginning February 6, 2020, the Veteran’s right ankle sprain resulted in marked limitation of motion. 3. From November 23, 2011, through August 12, 2020, the Veteran’s service-connected headaches were not prostrating. 4. From August 13, 2020, the Veteran’s service-connected headaches have been manifested by characteristic prostrating attacks occurring on an average once a month, but not productive of severe economic inadaptability. 5. The most probative evidence of record demonstrates that the Veteran’s left leg disability did not originate in service, is not otherwise etiologically related to service, and was not caused or aggravated by a service-connected disability. 6. The most probative evidence of record demonstrates that the Veteran’s right leg disability did not originate in service, is not otherwise etiologically related to service, and was not caused or aggravated by a service-connected disability. 7. The Veteran’s stomach disability did not have its onset in service, and is not related to service, including his diet therein. CONCLUSIONS OF LAW 1. Prior to February 6, 2020, the criteria for a rating in excess of 10 percent for a right ankle sprain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. 2. From February 6, 2020, the criteria for a 20 percent rating, but no higher, for a right ankle sprain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5271. 3. The criteria for an initial compensable rating prior to August 13, 2020, and a rating in excess of 30 percent from August 13, 2020, for service-connected headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. 4. The criteria for service connection for a left leg disability, to include on a secondary basis, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 5. The criteria for service connection for a right leg disability, to include on a secondary basis, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 6. The criteria for service connection for a stomach disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to December 1982. He testified at a Travel Board hearing before the undersigned in February 2020. These matters were remanded by the Board for additional development in June 2020. A September 2020 rating decision awarded a 30 percent rating for service-connected headaches, effective August 13, 2020. Initial Ratings Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Right Ankle The Veteran’s service-connected right ankle sprain is assigned an initial 10 percent rating from November 23, 2011, under Diagnostic Code 5271 for ankle limitation of motion. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limitation of motion and a 20 percent rating is warranted for marked limitation of motion. Normal range of motion of the ankle is from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Notably, the terms “moderate” and “marked” are not defined in the Rating Schedule. Additionally, the Board observes that the Veterans Benefits Administration has determined that these terms as they pertain to the ankle, as used in Diagnostic Code 5271, involve broad language that does not explicitly include consideration of any particular symptomatology. Here, a February 2012 VA Ankle Conditions Disability Benefits Questionnaire (DBQ) notes the Veteran’s history of right ankle sprain in service. His current complaints included constant right ankle pain. He denied use of assistive devices to ambulate. On examination, right ankle range of motion was from 45 degrees or greater plantar flexion to 20 degrees or greater dorsiflexion. Pain was not evidenced throughout the normal range of motion. The Veteran was able to perform repetitive use testing with the same results and no functional loss. Muscle strength testing was normal and the right ankle joint was stable. There was no ankylosis. There was pain on ankle palpation. A September 2013 VA outpatient treatment record notes the Veteran’s complaints regarding his left ankle; he was issued a cane for those left ankle complaints. VA treatment records dated from 2013 to 2020 do not show any treatment for right ankle problems. At a February 6, 2020 Board hearing, the Veteran testified that he had been prescribed a cane for his right ankle and that he had also experienced instances where he fell because of the instability in his right ankle. He described periods in which the symptoms associated with his right ankle would get a little better and then worsen again with sharp pains. The Veteran explained that when he started to experience throbbing symptoms, he had learned to sit down and stop walking to alleviate those symptoms. As a result of the testimony that the Veteran provided at the February 6, 2020 Board hearing, his claim was remanded for a current VA examination, which was conducted in August 2020. The August 2020 VA Ankle Conditions DBQ notes the Veteran’s complaints of dull, achy right ankle pain, popping/cracking, instability (especially with weight bearing) and intermittent swelling. He reported flare-ups of pain and swelling at least five times per month. The Veteran stated he was unable to walk long distances or stand on his foot without some kind of support. He reported regular use of a cane. On examination, there was tenderness on palpation of the right ankle. There was pain on weight bearing and evidence of crepitus. Range of motion was from 10 degrees of dorsiflexion to 25 degrees of plantar flexion, with pain on plantar flexion. Repetitive use testing was completed with no additional loss of function. The examiner opined that pain and weakness would significantly limit functional ability with repeated use over time; this was described as dorsiflexion to 10 degrees and plantar flexion to 20 degrees. The examiner further opined that pain and weakness would significantly limit functional ability during flareups; this was described as dorsiflexion to 5 degrees and plantar flexion to 15 degrees. Muscle strength was reduced to 3/5, but no muscle atrophy was seen on examination. Anterior drawer test showed right ankle laxity. The examiner noted that the Veteran used to work as a mechanic, and opined that his performance as a mechanic would be reduced as his ankle pain would slow him down. The also examiner observed that there was objective evidence of pain on passive range of motion testing and when the right ankle was used in nonweight bearing. In light of the probative evidence above, the Board finds that a rating higher than 10 percent is not warranted for the period prior to February 6, 2020. In pertinent part, throughout this period, the Veteran demonstrated normal range of motion of the ankle. Moreover, although there was evidence of pain on palpation, it was his only complaint and did not require the use of assistive devices. Thus, the severity of the symptoms prior to February 6, 2020, were more closely approximated as moderate (i.e., 10 percent rating criteria). A higher rating requires at least marked symptomatology/limitation of motion, which was not evidenced during that time period. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. For the period from February 6, 2020 (the date of the Board hearing), the Board finds that the evidence shows that a higher 20 percent rating is warranted. In that regard, during the February 6, 2020 Board hearing, the Veteran testified to needing a cane for his right ankle sprain, experiencing periods of sharp pains and throbbing symptoms, and also having instances of instability that resulted in falls. These symptoms were corroborated by the VA examination conducted in August 2020, which showed severe range of motion loss during periods of repetitive use and flare-ups, as well as instability. Such evidence is commensurate to marked limitation of motion (i.e., 20 percent rating criteria). Therefore, from February 6, 2020, the claim for a higher rating for right ankle sprain is granted. A 20 percent rating is the highest schedular rating available under Diagnostic Code 5271. The Board acknowledges that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has also considered the United States Court of Appeals for Veterans’ Claims (Court’s) holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), addressing 38 C.F.R. § 4.40, which states that a VA examiner must “express an opinion on whether pain could significantly limit functional ability” and the examiner’s determination in such regard “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” In light of these requirements, the Board has carefully considered the VA examinations of record and whether they complied with Correia and Sharp. Significantly, however, to the extent that the examination findings of record relative to the right ankle are not completely in compliance with Correia and/or Sharp, the Board finds that remand for additional examination would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Specifically, any current examination findings would not be useful in adjudicating the rating assigned for the period prior to February 6, 2020, and any retrospective opinion would merely impose an additional burden on VA with no benefit flowing to the Veteran, as VA would be asking an examiner to speculate as to the pre-February 6, 2020, ranges of motion. Moreover, for the period beginning February 6, 2020, the Veteran is in receipt of a 20 percent rating, which is the highest rating available for limitation of motion absent evidence of ankylosis. The Veteran has not contended that he has ankylosis and ankylosis is not shown throughout the entirety of the appeal period. Accordingly, a remand to obtain a current examination that complies with Correia and Sharp would not be useful. The Board has considered whether separate/higher ratings are available under other applicable diagnostic codes for ankle disabilities (Diagnostic Codes 5262, 5272, 5273, and 5274). However, the required pathology was not shown in this case, i.e., nonunion/malunion of the tibia/fibula; ankylosis, of the subastragalar or tarsal joint, malunion of the os calcis or astragalus; or astragalectomy. 38 C.F.R. § 4.71a. Headaches The Veteran’s service-connected headache disability (common headaches) is rated zero percent disabling from November 23, 2011, and 30 percent disabling from August 13, 2020, under Diagnostic Code 8100. Diagnostic Code 8100 provides a zero percent rating for migraine headaches with less frequent attacks. A 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging once per two months, over the preceding several months. A 30 percent rating is warranted with characteristic prostrating attacks occurring on an average once a month, over the preceding several months. A maximum 50 percent rating is warranted for very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define “prostrating,” nor has the Court. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court quoted Diagnostic Code 8100 verbatim but did not specifically address the matter of what is a prostrating attack. By way of reference, the Board notes that according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” The Court has held that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446. From November 23, 2011, to August 13, 2020, the Veteran’s service-connected headache disability is rated 0 percent. A February 2012 authorized VA headaches examination report notes the Veteran’s history of common headaches since 1979. Currently, the pain was localized to the left side of the head and lasted less than one day. The Veteran experienced sensitivity to light and sound with the headaches. He denied taking medication to treat his headaches. He also denied any characteristic prostrating attacks of migraine headache pain. VA and private treatment records and examination reports dated from 2011 through 2017 note no complaints of headaches. The Veteran denied headaches in May 2011 and November 2017. At the February 2020 Board hearing, the Veteran declined to provide any specific testimony as to his headache symptoms. Based upon a review of the record, the Board concludes that a compensable (10 percent or higher) rating is not warranted for the Veteran’s service-connected headaches for the initial period November 23, 2011, to August 13, 2020. In this regard, the evidence does not show that he suffered from prostrating attacks averaging one in two months over a period of several months, or for any several-month period, as is required for a 10 percent evaluation. The Board acknowledges that the Veteran suffered discomfort as a result of his headaches, as noted on examination in 2012; however, the record does not show that he suffered from prostrating attacks or show the extreme exhaustion or powerlessness that is contemplated by the regulations. Beginning August 13, 2020, the Veteran’s service-connected headache disability is rated 30 percent. After reviewing the record, the Board concludes that the criteria for a rating in excess of 30 percent have not been met at any point from August 13, 2020. Review of the record for this period shows that on a VA examination on August 13, 2020, the Veteran complained of constant headache pain that was localized to the front of the head. It was described as pulsating or throbbing, and associated with nausea, sensitivity to light and sound, and dizziness. The headaches lasted more than two days. It worsened with physical activity. The Veteran reported prostrating attacks once every month. The examiner opined that the Veteran was no longer working as a mechanic; however, the headache pain would impact his ability to work because the dizziness during the once a month headaches would pose a risk for falls and injuries. That said, the examiner also opined that the headaches were not productive of severe economic inadaptability. Based on the record, effective from August 13, 2013, the Board finds the Veteran’s service-connected headaches were manifested by no more than characteristic prostrating attacks occurring once per month, but not very frequent prostrating attacks productive of severe economic inadaptability. Accordingly, a rating in excess of 30 percent must be denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). When aggravation of a nonservice-connected condition is proximately due to or a result of a service-connected disability a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the “positive” evidence in favor of the claim is in relative balance with the weight of the “negative” evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Leg Disability and Right Leg Disability The Veteran essentially contends that his left leg and right leg disabilities have been present since service. See July 2014 Decision Review Officer (DRO) Hearing transcript. He also contends these disabilities are related to the altered gait caused by his service-connected right ankle disability. See November 2011 claim. After reviewing the evidence of record, the Board concludes that the preponderance of the evidence weighs against finding that the Veteran’s current leg disabilities began during service, or are otherwise related to an in-service injury, event, or disease, or are secondary to a service-connected disability. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303, 3.310. First, the Veteran is demonstrated to have current left leg and right leg disabilities. In this regard, the medical evidence (see August 2020 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire) shows current evidence of bilateral shin splints. Service treatment records (STRs) are silent for complaints or findings related to left leg or right leg disabilities. An October 1982 Report of Medical History notes that the Veteran denied swollen or painful joints, bone or joint deformity, lameness, and leg cramps. An October 1982 Report of Medical Examination notes that clinical evaluation of the lower extremities was normal. Regarding direct service connection, review of the evidence does not show that the Veteran was diagnosed with a left leg disability or right disability in service or at service separation. The absence of findings of an abnormal leg pathology in service, coupled with the absence of any documented complaint of leg problems more than several years after service weighs against finding a chronic leg disability in service. Additionally, the medical evidence does not show that the Veteran’s current left and right shin splints, diagnosed many years after service, are related to his active duty service. In August 2020, the Veteran was examined, and his claims file was reviewed. The Veteran told the examiner that he had “injuries to both shins, possibly stress fractures due to ruck marches and severe high impact activities,” in service. He reported that the persistent pain in his legs had increased since 1980 or 1981. The examiner opined that the left and right leg disabilities were not related to service, to include any physical training therein. In this regard, the examiner noted the evidence above, including the STRs which are silent for complaints or findings of a leg disability. The VA examiner’s opinions are probative, because they are based on examination of the Veteran and a review of the claims file, including the Veteran’s contentions, and includes a thorough explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent opinion to the contrary. Regarding secondary service connection, the August 2020 VA examiner opined that the Veteran’s left leg and right leg disabilities were less likely than not caused by or aggravated by his service-connected right ankle disability, including the altered gait caused by this disability. The examiner stated that the conditions of right ankle sprain and shin splints were not medically related according to the medical literature. Shin splints, rather, were related to overuse. There is no medical to the contrary. To the extent the Veteran believes his left and right leg disabilities are related to his military service or his service-connected right ankle disability with altered gait, he is not competent to provide a nexus opinion regarding this issue. The questions addressed in this case are medical in nature. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner’s opinions, as noted above. Stomach Disability The Veteran maintains that his current stomach disability has been present since service. He contends that his stomach problems began after consuming a starch-heavy diet in service. See April 2011 claim, and July 2014 DRO Hearing transcript. Having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for a stomach disability, and the appeal must be denied. First, there is a current diagnosis of a stomach disability. In this regard, the medical evidence (see VA treatment records dated from 2003 to 2017) shows current evidence of gastroesophageal reflux disease (GERD). See 38 C.F.R. § 3.303; Holton, 557 F.3d at 1366. STRs show that the Veteran was seen in March 1982 with complaints of upset stomach and cramps. Examination revealed functional bowel. An October 1982 Report of Medical History notes that the Veteran denied frequent indigestion, and stomach or intestinal trouble. An October 1982 Report of Medical Examination is negative for findings of stomach disability. The Board acknowledges the Veteran’s contentions that he was fed a highly starchy diet in service and experienced stomach problems since that time. However, the most probative evidence of record supports a finding that the stomach disability is not related to service. Although the Veteran complained of stomach pain and cramps in March 1982, no chronic stomach disabilities were noted in service, including at the time of his separation from service. Moreover, the September 2020 VA examiner provided an opinion that the Veteran’s diagnosed GERD is unrelated to active service, to include his diet in service. The examiner explained that no chronic disability had been shown in service, and the current GERD was not shown until many years after service. The examiner opined that GERD was not related to the Veteran’s subjective symptoms reported in service or the Veteran’s diet in service. No medical opinion to the contrary has been presented. Although the Veteran believes he has a stomach disability related to active service, the Board finds he is not competent to provide such a nexus opinion. A nexus between an internal disease and any incident during service is not capable of lay observation, and requires medical training, expertise, or credentials. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Even if the Veteran were competent to make such a nexus opinion, it is outweighed by the VA medical examiner’s opinion, which was based not only upon review of the claims file and medical expertise, but also on an examination of the Veteran. As the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, the claim is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. R. Fletcher, 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.