Citation Nr: 21066891 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 15-18 955 DATE: November 2, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for residuals of right foot (ankle) injury is denied. REMANDED Entitlement to service connection for bilateral foot conditions 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 in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. . REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the Army from June 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in February 2019. A transcript of the proceeding has been associated with the claims file. The Veteran's claims were previously remanded by the Board in a May 2021 decision. The Board finds that the RO has substantially complied with the May 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Although the Board sincerely regrets the additional delay, a remand is again necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to an evaluation in excess of 10 percent for residuals of right foot (ankle) injury The Veteran contends that he is entitled to a higher rating because his right ankle continues to deteriorate as he requires braces on both legs. The Board notes that the Veteran's representative contends that the June 2021 VA examiner failed to conduct follow up testing after repetitive use. The examiner was able to perform repetitive-use testing with at least three repetitions on both ankles and indicated there was no additional functional loss or loss of range of motion after three repetitions. The examiner also indicated that pain and incoordination would significantly limit functional ability with repeated use over time resulting in plantar flexion of 25 degrees and dorsiflexion of 10 degrees. The Veteran's right ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id. Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the 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; 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) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In June 2021, the Veteran was afforded an updated VA examination for his right ankle impairment. The examiner noted a diagnosis of residuals of right foot (ankle injury). The Veteran indicated that he entered service with flat feet, broke his foot twice during service, thus making his initial injury worse. The Veteran reported he can no longer walk, can only stand for 5 minutes, and uses an electric wheelchair due to his service connected and currently non-service-connected disabilities. The Veteran reported pain when weight bearing. The Veteran denied experiencing flare-ups. The Veteran further indicated that he requires special orthotic shoes to stabilize his ankles in order to walk at all. The examiner noted the Veteran had very limited range of motion in all directions affecting the ability to ambulate. On initial range of motion testing, the Veteran had 30 degrees of plantar flexion and 15 degrees of dorsiflexion. The examiner noted passive range of motion was the same as active range of motion. The examiner noted objective evidence of crepitus and localized, diffuse moderate tenderness or pain directly related to the claimed condition. There was no additional functional loss after three repetitions. The examiner concluded the Veteran would have 25 degrees of plantar flexion and 10 degrees of dorsiflexion with repeated use over time. The examiner noted pain and incoordination would limit the Veteran with repeated use from walking and weight bearing. The examiner also noted additional factors of interference with standing, disturbance of locomotion, and less movement than normal. The examination did not reveal muscle atrophy or ankylosis. The examiner also noted constant use of a wheelchair and a brace. The examiner also noted the Veteran is near completely wheelchair bound. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a right ankle disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, incoordination, interference with standing, disturbance of locomotion, and less movement than normal. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that despite not having flare-ups, he is unable to stand or walk for more than 5 minutes on his ankle would not result in symptoms more nearly approximating marked limited motion. Additionally, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right ankle disability because dorsiflexion measured 10 degrees and plantar flexion measured 25 degrees. Thus, these measurements did not meet the criteria corresponding to a higher 20 percent rating. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, incoordination, interference with standing, disturbance of locomotion, and less movement than normal. However even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that despite not having flare-ups, he is unable to stand or walk for more than 5 minutes on his ankle would not result in symptoms more nearly approximating marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for a right ankle disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to service connection for bilateral foot conditions is remanded. In its May 2021 remand decision, the Board directed the AOJ to obtain an updated VA examination regarding the Veteran's bilateral leg disorders, to include as secondary to the service-connected right foot/ankle injury. The Board directed the examiner to clarify the Veteran's other bilateral leg conditions including knee replacement, neuritis of the posterior tibial nerve, severe right tibial compression neuropathy at the bilateral ankles, and deep vein thrombosis. The examiner was specifically directed to address the November 1968 treatment note during service for swelling and aching in both legs. The examiner was also directed to address the study submitted by the Veteran's representative about recent studies showing that "increased foot pronation may compromise ankle plantarflexion movement during the stance phase of gait, which may overload knee and hip." The August 2021 VA examiner opined that the Veteran's bilateral foot/leg conditions were not related to the Veteran's service-connected right ankle disability or otherwise related to his service. In their brief, the Veteran's representative contended the August 2021 VA examination was inadequate for two reasons. First, they cited several articles that were in opposition to the opinion of the August 2021 VA examiner's that injury of one joint could not harm the opposing joint including an article posted by the VA. Second, the brief pointed out a legal error in the August 2021 VA examiner's opinion in that it concluded the Veteran was not competent to report on his own symptoms regarding the origin of a condition. The Board also finds that the VA examination did not provide an adequate opinion regarding whether the Veteran's pre-existing bilateral pes planus was aggravated or otherwise impacted by his military service based on the Veteran's statements that his pes planus was worsened by the injury underlying his service-connected right ankle disability. Thus, remand is required for a new examination with opinion regarding the nature and etiology of the Veteran's bilateral foot and leg conditions. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his bilateral leg conditions. The examiner must review the claims file. The examiner is directed to provide opinions regarding each of the Veteran's diagnoses impacting his lower legs, feet, and ankles including but not limited to his neuritis of the posterior tibial nerve, severe bilateral tibial compression neuropathy, bilateral pes planus, and deep vein thrombosis. If diagnoses cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Are any of the Veteran's lower leg disabilities at least as likely as not related to service, including related to the November 1968 treatment for swelling and aching in both legs Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her 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/her 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? Are any of the diagnosed disabilities at least as likely as not proximately due to the service-connected right ankle disability? Are any of the diagnosed conditions at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected right ankle condition? The examiner is directed to directly address the medical treatise evidence cited in both the April 2021 and October 2021 statements submitted by the Veteran's representatives. Furthermore, did the Veteran's bilateral pes planus clearly and unmistakably (undebatable) preexist the Veteran's service? If the examiner finds bilateral pes planus did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? The examiner is directed to consider the lay statement of the Veteran that his pes planus was aggravated by the injury underlying his service-connected right ankle condition. If the examiner finds that pes planus either did not clearly and unmistakably preexist service or was not clearly and unmistakably not aggravated by service, the examiner must opine whether it is at least as likely as not related to service. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.