Citation Nr: 21065332 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-43 706 DATE: October 25, 2021 ORDER A rating greater than 10 percent for the service-connected right ankle disability status post arthroscopy debridement and lateral ligament reconstruction (right ankle disability) is denied. REMANDED Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. FINDING OF FACT The Veteran's right ankle disability is manifested by no more than moderate limited motion of the ankle. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for service-connected right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Marine Corps from October 8, 1984 to January 4, 1985 and the Army National Guard from February 27, 1986 to February 26, 1988 and from December 7, 1990 to May 11, 1991. These matters are on appeal from a January 2017 rating decision. In March 2019, the Board remanded these matters for additional evidentiary development. Entitlement to an initial rating greater than 10 percent for service-connected right ankle disability. The Veteran contends that his service-connected right ankle disability after surgery and physical therapy continues to be problematic, with pain, burning and weakness/failure under repetitive motion, (walking moderate distance, walking on uneven surface, walking on inclined surfaces). He further contends that he has a permanent military profile prohibiting running, and this injury continues to impact his daily life. He experiences occasional swelling of this ankle, wear an ankle brace daily to limit the possibility of additional injury and that he has some degree of post trauma arthritis, which will only increase with time. The Veteran is requests that his ankle disability be consider as moderate. As such, the Veteran requests that his right ankle disability be rated at 20 percent. See August 2017 Form 9. The Veteran's ankle disability is rated under DC 5271, which evaluates range of motion in the ankles. A 10 percent rating is assigned for moderate limitation of motion and a 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a; DC 5271 (2020). The Board notes that words such as moderate and marked are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2020). Normal ranges of motion of ankles are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. It is noted that during the course of this appeal, VA amended the rating criteria for evaluating the musculoskeletal disabilities under 38 C.F.R. § 4.71a effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). The new regulations changed DC 5271 to further define marked and moderate limitation of motion. Under the new regulations, a 10 percent rating is assigned for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) and a 20 percent rating is assigned for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 38 C.F.R. § 4.71a, DC 5271 (2021). The Board has also considered whether a higher rating is warranted based on functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating more than the minimum compensable rating must be based on demonstrated functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Factual Background The Veteran was afforded a VA examination in April 2016, at which he was diagnosed with a lateral collateral ligament sprain and arthroscopy debridement and lateral ligament reconstruction, right ankle. The Veteran reported flare-ups and decreased Range of Motion (ROM) secondary to increased pain during flares. On examination, he demonstrated dorsiflexion 0 to 20 degrees and plantar flexion 0 to 32 degrees without pain. The examiner stated that the abnormal ROM contributed to functional loss. The examiner stated that there is no evidence of pain with weight bearing. The Veteran stated that he does not run or walk long distances or on uneven surfaces. Repetitive use testing was performed with no additional loss in ROM. The Veteran retained normal 5/5 muscle strength in his ankle, and he occasionally uses and ankle brace. The VA examiner did not conduct examine during a flare up of the injured right ankle at the time because the ankle was not flared at the time, the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. The Veteran was afforded a second VA examination in February 2020 at which he reported experiencing aching pain, swelling, disturbance of locomotion, interference with standing and crepitus in the right ankle, worsening with weight bearing for extended periods, and flares up after a lot of use. On examination, he demonstrated dorsiflexion 0 to 15 degrees and plantar flexion 0 to 35 degrees. The examination was conducted during a flare up and resulted that there was pain, weakness, fatigability or inconsistent significantly limit functional ability with flare ups. There was evidence of localized tenderness and the examiner noted the Veteran was able to perform repetitive use with at least three repetitions and that there was no additional loss of function or range of motion after three repetitions. The examiner indicated that pain, fatigability, weakness, lack of endurance, or incoordination after repeated use over time would limit dorsiflexion to 0 to 15 degrees and plantar flexion to 0 to 35 degrees. The Veteran retained normal 5/5 muscle strength in his ankle, and he constantly uses and ankle brace. The examiner indicated that bilateral ankle instability or dislocation was suspected, but there was no ankylosis, "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or a talectomy (astragalectomy). The examiner opined that the Veteran's symptoms had worsened, but no change to the service-connected diagnosis and no additional diagnoses were rendered. In summary, the April 2016 and the February 2021 VA examinations, the results are similar with sight changes in range of motion. There was a decrease in dorsiflexion of 5 degrees but an increase of plantar flexion of 3 degrees from April 2016 to February 2021. The use of an assistive device (ankle brace) went from occasional to constant. The Veteran retained normal 5/5 muscle strength in his right ankle. Outside of these changes in Veteran's results, everything else remain unchanged. Rating criteria prior to February 7, 2021. The medical evidence shows that the Veteran does not have any ankylosis, malunion, or astragalectomy in the right ankle. The April 2016 examination showed that the Veteran's right ankle had range of motion dorsiflexion 0 to 20 degrees and plantar flexion 0 to 32 degrees without pain. The February 2020 examination showed that the Veteran's right ankle had dorsiflexion 0 to 15 degrees and full range of plantar flexion 0 to 35 degrees. The examiner described Veteran's ankle condition as mild in severity, consistent with a sprain, and the Veteran does use assistive devices. Looking at the Veteran's ankle disability picture as a whole, the limitation of range of motion in Veteran's right ankle is merely "mild" to "moderate" rather than "marked," and does not support a 20 percent rating under DC 5271. Here, the Veteran has already received a compensable rating based in part on pain in his right ankle. However, the evidence of record does not show that pain, weakness, or other symptoms has effectively functionally limited the plantar flexion bilaterally or dorsiflexion in the ankle to a "marked" degree. For example, the April 2016 examination show that the Veteran's right ankle had dorsiflexion 0 to 20 degrees and full range of plantar flexion 0 to 32 degrees, and the February 2020 examination showed that the Veteran's right ankle had dorsiflexion 0 to 15 degrees and full range of plantar flexion 0 to 35 degrees. As such, the overall evidence does not support a finding of "marked" limitation of the right ankle, which is required by the 20 percent rating criteria. As such, a higher rating based on additional functional loss under 38 C.F.R. §§ 4.40 and 4.45 is not warranted. Notably, the February 2020 examination was conducted during a flare-up and showed that, despite an increase in symptoms such as pain, the functional limitation was consistent with a mild level of severity as contemplated by the currently assigned 10 percent evaluation under the prior version of DC 5271. Therefore, under the rating criteria prior to February 7, 2021, after evaluating all evidence, a rating greater than 10 percent for an ankle disability is not warranted. Rating criteria after to February 7, 2021. Here, the most restrictive ROM was shown at the February 2020 VA examination, which showed dorsiflexion to 15 degrees and plantar flexion to 35 degrees after considering the pain. As a result, such limitation of ROM does not meet the criteria for "marked" limitation under DC 5271 under the new regulations. According, a rating greater than 10 percent for the right ankle is not warranted under the new regulations. With respect to the Deluca factors and considering periods of flare up, the February 2020 examination was conducted during a flare-up and showed that, despite an increase in symptoms such as pain, the functional limitation was consistent with a level of severity as contemplated by the currently assigned 10 percent evaluation under the revised version of DC 5271. Other diagnostic codes regarding ankle disabilities have been considered. DC 5270 evaluates ankylosis of the ankle; DC 5272 evaluates ankylosis of the subastragalar or tarsal joint; DC 5273 evaluates malunion of the os calcis or astragalus; and DC 5274 evaluates astragalectomy, or removal of the talus bone. As the evidence does not suggest that the Veteran has the above symptoms or conditions, these DCs are not applicable and will not be discussed further. In sum, given that the medical records do not show that Veteran's right ankle disability results in any ankylosis, malunion, astragalectomy, or "marked" limitation of motion, under both old and new regulations, a rating greater than 10 percent for a right ankle disability is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disorder is remanded. 2. Entitlement to service connection for a right shoulder disorder is remanded. In March 2019, the Board remanded the appeal to afford the Veteran a VA examination to determine the nature and etiology of his bilateral shoulder disabilities. In March 2019, the Board remanded these issues and asked that appropriate development to obtain any outstanding, pertinent evidence for the claims, including the reported treatment records from the Mannheim medical facility. The AOJ did not requests Mannheim medical facility record per the Board's March 2019 remand. VA has a duty to make as many requests as necessary to obtain the medical treatment records, from the appropriate sources. Gagne v. McDonald, 27 Vet. App. 397 (2015). Pursuant to the March 2019 Board remand, the Veteran underwent a February 2020 VA examination. The VA examiner opined that the Veteran's military service records do not support that the claimed right and left shoulder disorders were not aggravated beyond their natural progression by a period of duty for training and that there are insufficient medical records to support a nexus with the claimed bilateral shoulder disorder to Veteran's active service. Inasmuch as the VA examiners concluded that bilateral shoulder disability is not the result of Veteran's in-service activities because bilateral shoulder disability was diagnosed years after separation and no record of bilateral shoulder injury is reported in Veteran medical records, the Board notes that an opinion based on the absence of medical records without consideration of a Veteran's lay statements is incomplete. Buchannan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In a May 2021 medical opinion regarding the Veteran's injured right shoulder, the Veteran's private doctor referenced his December 2012 examination notes to make the following statement: "that he did not think the Veteran had any significant AC separation and that the Veteran appear to have some cystic changes at the intersection of his rotator cuff, likely indicating chronic repetitive traction type injuries from over-head use and some partial tearing of his rotator cuff." He does not definitively opine that the Veteran's right shoulder disability is directly related to the claimed accident in Germany while the Veteran was in Germany. Although the private examiner's opinions are somewhat positive in favor of a nexus between Veteran claimed right shoulder injury to his active-duty service, nevertheless they are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Therefore, the Board finds the May 2021 private medical opinion to be incomplete as the examiner's rationale was inconclusive. Therefore, a remand is necessary to assists the Veteran in retrieving his medical record from Mannheim and for an adequate addendum opinion to determine whether a current shoulder disability is related to the claimed in-service injuries in Germany and/or was aggravated by active service. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding, pertinent evidence for the claims, including the reported treatment records from the Mannheim medical facility. 2. Afford the Veteran an examination to determine whether the Veteran has a bilateral shoulder disability related to active service. All pertinent evidence of record must be made available to and reviewed by the examiner. Specifically, the examiner should state an opinion as to whether it is at least as likely as not (50 percent probability or more) that a shoulder disorder began during or is etiologically related to active service (October 1984 to January 1985, February 1986 to February 1988, and December 1990 to May 1991) or was aggravated by a period of duty for training. The examiner must provide a rationale for all opinions expressed with consideration of the Veteran's reported injury in the late 1980s during active service. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, a complete explanation as to why this is so should be provided. If the inability to provide a more definitive opinion is the result of a need for additional information, the additional information that is needed should be identified. The examiner must provide a complete rationale for all proffered opinions. The opinion must also address the Veteran's lay statements and private medical opinion regarding his in-service symptomatology and continuous symptoms since service, to include the contention that the bilateral shoulder disabilities may be related to repetitive use during active service. If the examiner cannot provide the required opinions without resorting to speculation, he or she must state whether this is based on a personal limitation or on a lack of knowledge among the medical community at large. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Le, Tai D. 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.