Citation Nr: 21068089 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 08-12 810 DATE: November 9, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for a left ankle arthritis with left ankle collateral ligament sprain and deltoid ligament sprain (hereinafter left ankle disability), to include extraschedular consideration is denied. REMANDED Entitlement to service connection for a low back disability, to include as secondary to left ankle arthritis is remanded. Entitlement to service connection for a bilateral leg disability, to include radiculopathy associated with a low back disability is remanded. Entitlement to service connection for a peptic ulcer is remanded. FINDING OF FACT The Veteran's left ankle disability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 20 percent for a left ankle disability, to include extraschedular consideration have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from December 1974 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2005, September 2006, September 2014, and November 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Most recently, the Veteran's claims were remanded by the Board in an August 2020 decision. The Board directed the RO to schedule the Veteran for VA examinations to determine the nature and etiology of his claims of service connection for a low back disability, peptic ulcer, and a bilateral leg condition, and to determine the current severity of his service-connected left ankle disability. The RO attempted to schedule the Veteran for VA examinations; however, during a June 2021 phone call, the Veteran stated that he did not want to go any further with anything to do with the VA. The Board has considered whether the Veteran's statement qualifies as an attempt to withdraw his claims, but finds that his statement was not explicit, unambiguous, or done with a full understanding or the consequences of such actions. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). Consequently, the Board will proceed with adjudication of the Veteran's claims. As for the claims of service connection for a low back disability, peptic ulcer, and bilateral leg condition, the Board finds that the RO has not substantially complied with the Board's August 2020 remand. See Stegall v. West, 11 Vet. App. 268 (1998). Although the RO attempted to schedule VA examinations for which the Veteran would not attend, the Board finds that the Veteran should be afforded a VA medical opinion as to the nature and etiology of his claimed conditions based on the evidence included in his claims file. As for the Veteran's claim for an increased rating for the service-connected left ankle disability, the Board finds that pursuant to 38 C.F.R. § 3.655, when a claimant fails to attend an examination for a claim of increase, the claim shall be denied. The Veteran is reminded that the "duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, in the absence of the Veteran's cooperation in obtaining pertinent medical evidence, VA has no further obligation to develop the record on appeal. The Board will adjudicate the claim for an increased rating for the left ankle disability based on the evidence of record. Finally, during the pendency of the appeal, in an August 2021 rating decision, the RO granted service connection for left ankle collateral ligament sprain and deltoid ligament sprain and combined the condition along with his already service-connected left ankle arthritis. The Board will evaluate the symptoms associated with both left ankle conditions when evaluating the severity of his left ankle disability. 38 C.F.R. § 4.14. 1. Entitlement to an evaluation in excess of 20 percent for a left ankle disability, to include extraschedular consideration The Veteran contends that his left ankle disability warrants a higher rating and should be evaluated on an extraschedular basis. Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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). The Veteran's left 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 maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). 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. The Board notes that the Veteran filed her claim for increased evaluation on October 20, 2014; the Board has considered the evidence of record since October 20, 2013 in conjunction with this decision. See 38 C.F.R. § 3.400 (o). The evidence relevant to the severity of the Veteran's left ankle disability includes a November 2014 VA examination. During the examination, the Veteran contended that he experiences chronic left ankle pain which leads to difficulty with prolonged ambulation, climbing stairs, and performing arduous physical activities. It was noted that the Veteran was not undergoing any treatment for his left ankle. Upon range of motion testing, the Veteran's left ankle plantar flexion was limited to 30 degrees. His left ankle dorsiflexion was limited to 10 degrees. The Veteran was able to perform repetitive use testing without additional limitation in range of motion. The examiner noted pain on movement, pain in weight-bearing or nonweight-bearing, and localized tenderness and pain of moderate severity. Contributing factors of the Veteran's left ankle disability include less movement than normal, weakened movement, pain on movement, and interference with standing. During flare-ups and after repeated use over time, the examiner opined that pain, weakness, fatigability, or incoordination significantly limits the Veteran's functional ability. The examiner estimated that the Veteran's range of motion would be reduced, with left ankle plantar flexion limited to 25 degrees and left ankle dorsiflexion limited to 5 degrees. There was no evidence of muscle atrophy or ankylosis. The examiner indicated that the Veteran's disability would impact his ability to perform occupational tasks with the exception of light physical and sedentary activities. The Veteran's VA treatment records do not include any recent treatment or notations regarding the left ankle disability. The most recent notation is in August 2013 which indicated that the Veteran received his final weekly acupuncture treatment for his left ankle disability. After carefully considering the evidence of record, the Board finds that the preponderance of the evidence is against awarding a rating in excess of 20 percent for the left ankle disability. The Veteran is in receipt of the highest schedular rating for limited motion of the ankle under both the old and new schedular rating criteria, and there is no basis to award a higher rating. The only evidence of record includes a November 2014 VA examination as the Veteran declined to attend a contemporaneous VA examination to evaluate the current severity of his left ankle condition. The November 2014 VA examiner accounted for the Veteran's functional loss during flare-ups and repeated use over time, finding that his dorsiflexion would be limited to 5 degrees, warranting a 20 percent evaluation under Diagnostic Code 5271. 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. The November 2014 VA examiner did not find any evidence of ankylosis to warrant a higher evaluation under Diagnostic Code 5270. The Board notes that ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd Ed. 2012). The limited evidence contained in the Veteran's claims file does not indicate that the Veteran experiences immobility due to his left ankle disability. The November 2014 VA examiner did not state that the Veteran uses an assistive device for ambulation. Furthermore, the Veteran contended that his pain only results in difficulty with prolonged ambulation, climbing stairs, and performing arduous physical activities. Neither the Veteran's statements nor the objective medical evidence of record demonstrates that the Veteran's left ankle disability renders him immobile. Therefore, the Board concludes that the Veteran is not entitled to a higher evaluation under another diagnostic code, to include Diagnostic Code 5270, for his left ankle disability. The Board has also considered whether the Veteran is entitled to an extraschedular rating for his left ankle disability. In Thun v. Peake, 22 Vet. App. 111 (2008), the United States Court of Appeals for Veterans Claims (Court) articulated a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Veteran's left ankle disability is rated under Diagnostic Code 5271. The record shows that he has complaints and findings of pain and limitation of motion. Diagnostic Code 5271 specifically contemplates the Veteran's symptoms in the evaluation criteria. As previously noted, the evaluation of musculoskeletal disabilities based on limitation of motion requires consideration of functional loss caused by pain or other factors, including symptoms occurring during flare-ups or after repeated use. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 25 Vet. App. at 25; see also Mitchell, 25 Vet. App. 44. As the Veteran's left ankle disability manifestations are reasonably contemplated by Diagnostic Code 5271, the threshold issue under Thun is not met, and further consideration of an extraschedular rating is not warranted. In sum, the Veteran already has the maximum schedular disability rating under Diagnostic Code 5271. Additionally, the left ankle disability does not warrant consideration on an extraschedular basis. Accordingly, the Veteran's claim for entitlement to an increased rating for his left ankle disability is denied. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 4.3. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is 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. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a low back disability, to include as secondary to left ankle arthritis is remanded. The Veteran contends that his low back disability is due to a fall in-service. Alternatively, he contends that his low back disability is due to his service-connected left ankle disability. The Veteran's service treatment records include a November 1975 notation where the Veteran stated he fell and landed on his back. He stated that this fall was similar to when he previously fell from a cliff. The Veteran was assessed with a lumbar strain, but his x-rays were normal. The Veteran's post-service treatment records include continued complaints for back pain. An April 2007 x-ray noted minimal degenerative joint disease at L1-L5. In November 2008, a staff physician noted that the Veteran's back problems are likely worsened by the Veteran's service-connected ankle problems. Although the Veteran declined a VA examination to determine the nature and etiology of his low back disability, the Board finds that the Veteran is still entitled to a VA medical opinion to determine whether the Veteran's low back disability is related to his service or proximately due to or aggravated by his service-connected left ankle disability. 3. Entitlement to service connection for a bilateral leg disability, to include radiculopathy associated with a low back disability is remanded. The Veteran contends that he has a bilateral leg disability that is due to his active service. The Veteran's service treatment records are silent as to any complaints or treatment for a bilateral leg condition with the exception of the left knee and ankle, which are already service connected. The Veteran's post-service treatment records contain numerous complaints relating to the legs associated with the Veteran's claimed low back disability. In May 2000, the Veteran first reported low back pain with pain radiating down his left leg. Thereafter, the Veteran continued to complain of low back pain associated with radiating leg pain. As the Veteran's claim for a low back disability is being remanded, the Board finds that the bilateral leg disability claim, to include possible radiculopathy associated with the claimed low back disability should also be remanded for a medical opinion. 4. Entitlement to service connection for a peptic ulcer is remanded. The Veteran claims that he as peptic ulcer that is related to his active service. The Veteran's service treatment records include complaints of abdominal pain in August 1975 and September 1975. A July 1997 medical record contained in the Veteran's Social Security Administration medical treatment records notes a diagnosis of and treatment for a peptic ulcer in 1994 and 1997. Additionally, the Veteran's VA treatment records contain numerous complaints of and treatment for abdominal pain. Therefore, the Board finds that the issue should be remanded for a VA medical opinion to determine whether the Veteran has a peptic ulcer that is related to his in-service abdominal complaints. The matters are REMANDED for the following actions: 1. Obtain a medical opinion from an appropriate clinician based on a review of the claims file as to the nature and etiology of the Veteran's low back disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Is the Veteran's low back disability at least as likely as not related to service, including his November 1975 complaint of low back pain associated with a fall? (b) Is the Veteran's low back disability at least as likely as not proximately due to his service-connected left ankle disability? (c) Is the Veteran's low back disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected left ankle disability? When rendering an opinion, the examiner must consider and address the November 2008 opinion included in the Veteran's VA treatment records, noting that his back problems are likely worsened by his service-connected left ankle arthritis. (d) Is it at least as likely as not that the Veteran's low back disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Any opinion expressed should be accompanied by a complete rationale. 2. Obtain a medical opinion from an appropriate clinician based on a review of the claims file as to the nature and etiology of the Veteran's claimed bilateral leg disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a) Does the Veteran have a bilateral leg disability, to include radiculopathy, that is at least as likely as not proximately due to his low back disability? (b) Does the Veteran have a bilateral leg disability, to include radiculopathy, that is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the low back disability? Any opinion expressed should be accompanied by a complete rationale. 3. Obtain a medical opinion from an appropriate clinician based on a review of the claims file as to the nature and etiology of the Veteran's claimed peptic ulcer. The examiner must review the claims file. The examiner is asked to provide a response to the following: Does the Veteran have a currently diagnosed peptic ulcer, or any other related conditions, that are at least as likely as not related to his service, including his September 1975 complaint of abdominal pain? Any opinion expressed should be accompanied by a complete rationale. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.