Citation Nr: 21069450 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-24 716 DATE: November 18, 2021 ORDER A rating in excess of 20 percent for post-traumatic osteoarthritis of the right ankle is denied. REMANDED Entitlement to service connection for dextroscoliosis of the lumbar spine. FINDINGS OF FACT 1. The Veteran served on active duty from January 1967 to November 1970 2. The right ankle disability is productive of complaints of constant pain and feeling unstable and off balance with objective findings of range motion from 5 degrees dorsiflexion to 20 degrees plantar flexion without ankylosis, malunion of the tibia or fibula, or clinical findings of instability. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for post-traumatic osteoarthritis of the right ankle have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The left ankle disability is rated under DC 5271 for limitation of motion of the ankle. While this appeal was pending, the rating criteria for musculoskeletal disabilities was amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). If the amended criteria are more favorable, the implementation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of the change. If the pre-amended criteria are more favorable, VA can apply the pre-amended criteria for the period prior to and from the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's appeals under the pre-amended criteria prior to February 7, 2021, and both the pre-amended and amended criteria since February 7, 2021. The criteria that is more favorable will be applied. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the pre-amended and amended criteria, a 20 percent rating is the maximum available under DC 5271, as well as for an ankle disability resulting from ankylosis of the subastragalar or tarsal joint (DC 5272), malunion of the os calcis or astragalus (DC 5273), and astragalectomy (DC 5274). A rating in excess of 20 percent was warranted prior to February 7, 2021, as follows: malunion of the tibia and fibula with a marked ankle disability (30 percent under DC 5262); ankylosis in plantar flexion at more than 40°, or in dorsiflexion at more than 10° or with abduction, adduction, inversion or eversion deformity (40 percent under DC 5270); ankylosis in plantar flexion, between 30° and 40°, or in dorsiflexion, between 0° and 10° (30 percent under DC 5270). Under the revised criteria, malunion of the tibia and fibula resulting in ankle disability is to be rated under DC 5270 or DC 5271, whichever results in the higher rating. The ratings for ankylosis remain as above. Normal range of ankle motion is from 20 degrees of upward dorsiflexion to 45 degrees of downward plantar flexion. 38 C.F.R. § 4.71, Plate II. Turning to the evidence, in an October 2016 VA examination, the Veteran reported that the right ankle had been "slowly getting worse" with more frequent pain and discomfort, dull and sharp in character. Pain was worse with walking over a block and using stairs and with cold and damp weather. He also described "crunching" when walking, popping in the joint, and tingling and cramps in the foot when walking. He indicated that he sometimes felt unstable and off balance and that uneven ground caused problems for him. Clinical examination revealed range of motion of the right ankle from 5 degrees dorsiflexion to 30 degrees plantar flexion. There was pain with dorsiflexion and with weight-bearing. Repetition did not result in any additional functional loss. The examiner noted that the Veteran experienced flare-ups with signs and symptoms as described above. Muscle strength was 5/5 with plantar flexion and 4/5 with dorsiflexion. There was no sign of dislocation or instability and no ankylosis. Regular use of a brace for the right ankle was noted. In a July 2017 VA examination, the Veteran reported constant pain in the right ankle. Clinical examination found range of motion of the right ankle from 5 degrees dorsiflexion to 30 degrees plantar flexion. No pain was noted with range of motion testing, but there was pain with weight-bearing. Repetition did not result in any additional functional loss, and there was no report of flare-ups. Muscle strength was 5/5 with plantar flexion and dorsiflexion. The examiner suspected instability but testing for instability was negative. A review of relevant treatment notes does not reveal manifestations of the right ankle disability more severe than documented at the VA examinations. Based on the above, the medical evidence does not support a higher rating for the right ankle disability. Specifically, a rating in excess of 20 percent requires malunion of the tibia and fibular or ankylosis of the ankle, neither of which is demonstrated on clinical examination. Thus, a rating in excess of 20 percent is not warranted in light of the medical findings. The Board has considered the Veteran's lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. In this regard, in the May 2017 VA Form 9, the Veteran argued that a higher rating was warranted because he had degeneration and ankylosis in the right ankle; however, as shown by the October 2016 and July 2017 VA examinations, ankylosis of the right ankle is not present. Further, while there were degenerative changes, the rating contemplates the functional impairment resulting from the degeneration, not the severity of the degeneration alone. Thus, competent evidence concerning the nature and extent of the Veteran's right ankle disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Regrettably, a remand is required of the claim for service connection for a back disorder. The Veteran was afforded a VA examination to assess the nature and etiology of his back disorder in October 2016. The examiner diagnosed dextroscoliosis of the lumbar spine and noted findings of mild scoliosis and marked degenerative arthritis on X-ray. The examiner opined that the degenerative changes were likely associated with the scoliosis and the scoliosis was less likely due to the right ankle disability. The examiner also observed that no report of scoliosis was found in service treatment records (STRs). However, the examiner offered no rationale for the opinion. Therefore, the opinion is inadequate, and another opinion is needed. The matter is REMANDED for the following actions: 1. Undertake appropriate development to associate outstanding, relevant treatment notes with the claims file. 2. Direct the claims file to a clinician to address the following: Is it at least as likely as not (a 50% probability or more) that the Veteran has a back disorder that was caused or aggravated beyond normal progression by his service-connected right ankle disorder? The rationale for any opinion expressed must be provided. In addition, the clinician is advised that the questions of causation and aggravation are distinct, and the rationales provided should also be distinct. Further, the clinician should consider any alteration of body mechanics caused by the right ankle in forming the opinion. If the clinician is unable to provide the opinions requested, he or she should explain why. 3. An examination need not be scheduled unless the clinician cannot answer the questions presented without one. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. M. Schaefer, 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.