Citation Nr: A21018356 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 200207-62326 DATE: November 17, 2021 ORDER Entitlement to a rating of 20 percent for a deformed left tibia with painful motion of the left ankle, effective June 28, 2019, is granted. REMANDED Entitlement to a rating in excess of 30 percent for onychomycosis of the fingernails and toenails is remanded. FINDING OF FACT The evidence of record indicates that, from June 28, 2019, the Veteran's deformed left tibia with painful motion of the left ankle is manifested by marked limitation of motion to include when considering functional loss. CONCLUSION OF LAW The criteria for entitlement to a rating of 20 percent, but no more, for a deformed left tibia with painful motion of the left ankle, effective June 28, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1977 to February 1980. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law, which went into effect in February 2019, creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The framework applies to all decisions issued after the effective date of the legislation. 38 C.F.R. §§ 3.2400(a)(1), 19.2(a). In early January 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 2019 decision. In late January 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2019 decision. Therefore, the Board may only consider the evidence of record at the time of the December 2019 decision. The Veteran timely appealed to the Board and selected the direct review docket. 38 C.F.R. §§ 3.2500(a)(1)(ii), 20.202, 20.203. In November 2020, the Board denied entitlement to disability ratings in excess of 30 percent for onychomycosis of the fingernails and toenails and in excess of 10 percent for a deformed left tibia with painful motion of the left ankle. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In June 2021, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's November 2020 denial and remanded the matter to the Board for compliance with the instructions included in the parties' JMR. Entitlement to a rating of 20 percent for a deformed left tibia with painful motion of the left ankle, effective June 28, 2019 A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the adequacy of assigned disability ratings, consideration is also given to factors affecting functional loss. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use, including that experienced during flare ups. 38 C.F.R. § 4.40. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 4243 (2011) (holding that pain alone does not constitute functional loss and is just one fact to be considered when evaluating functional impairment). That said, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. The Veteran's deformed left tibia with painful motion of the left ankle is rated under Diagnostic Code (DC) 5271. 38 C.F.R. § 4.71a. DC 5271 provides ratings based on limitation of motion of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling. Marked limitation of motion of the ankle is rated as 20 percent disabling. A 20 percent evaluation is the highest rating warranted for limitation of motion of the ankle. Normal ranges of motion of the ankle 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. 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. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. On review of the record, the Board finds that, affording the Veteran the benefit of the doubt, the disability picture presented more accurately reflects a 20 percent disability rating, but no higher, from June 28, 2019. Turning to the medical evidence of record, the VA examination dated July 2019 indicates that the Veteran reported that his disability had worsened over time and that his left ankle swelled more frequently. He reported symptoms of pain, stiffness, swelling, and numbness on the top of the foot. He reported treating his condition with Tylenol, 325 milligrams, twice daily, and Voltaren Gel, applied four times per day. He also reported ankle flare-ups consisting of pain that caused him to stop his tasks and rest until the pain subsided. The Veteran reported functional loss or impairment, specifically, that he had difficulty walking, running, jumping, climbing, standing, squatting, driving, standing on the balls of his feet, and wearing certain shoes. Initial range of motion testing revealed left ankle dorsiflexion to 10 degrees and plantar flexion to 30 degrees. The abnormal range of motion contributed to functional loss. Pain was noted on examination and caused functional loss. Both dorsiflexion and plantar flexion exhibited pain. No objective evidence of pain or localized tenderness to palpation was noted. Pain with weight bearing was noted. No crepitus was noted. The Veteran was able to perform repetitive-use testing, and there was no additional limitation following repetitive-use testing. The examiner noted that plantar flexion would be additionally limited to 25 degrees as a result of pain following repeated use over a period of time, and that plantar flexion would be additionally limited to 20 degrees due pain during a flare-up. The examiner noted additional contributing factors of the disability, specifically, that the Veteran's decreased range of left ankle motion was the result of the left tibia deformity and pain. Muscle strength testing revealed 4/5 strength of dorsiflexion and plantar flexion. No muscle atrophy was noted. No ankylosis was noted. No instability or dislocation was suspected. The examiner noted that the Veteran required constant use of a brace for his left ankle disability. The examiner noted functional impact of his disability, specifically, that it results in difficulty running, jumping, prolonged ambulation, prolonged standing, and high impact activities. The Board has considered whether a higher rating would be warranted on the basis of additional functional impairment and loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the Board finds that the 20 percent rating for a marked disability more adequately contemplates the Veteran's disability picture to include functional impairment and loss. The Board acknowledges the evidence of record indicating functional loss, as set out above, which includes limitations in running, jumping, prolonged ambulation, prolonged standing, high impact activities, climbing, squatting, driving and standing on the balls of his feet. Moreover, the Veteran's reports that he must completely stop activity to rest during a flare-up indicates or approximates a lack of motion rather than merely limited motion. Thus, when considering the Veteran's functional loss in certain enumerated activities as well as his severely limited or absent motion during a flare-up, the Board finds that the maximum 20 percent rating is warranted under DC 5271. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. However, the evidence does not show the Veteran suffers from symptoms better represented by another diagnostic code. Ankylosis has not been shown in the medical evidence nor has it been alleged by the Veteran. Moreover, the functional equivalent of ankylosis has not been shown in the medical evidence nor has it been alleged by the Veteran. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Therefore, DCs 5270 and 5272 do not apply. The record does not show malunion of the os calcis or astragalus, or that the Veteran has had an astragalectomy. Thus, DCs 5273 and 5274 are not for application. Accordingly, a higher rating under another diagnostic code is not warranted. The Board acknowledges the Veteran's competent and credible reports of relevant observable symptoms, as set out in the VA examination. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). These lay statements are consistent with the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. In sum, the Board finds that a disability rating of 20 percent, but no higher, from June 28, 2019, is warranted for the Veteran's left ankle disability. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under the facts and procedural history of the appeal, the effective date of June 28, 2019, is assigned. 38 C.F.R. § 3.400. Finally, although the rating schedule for evaluating musculoskeletal disabilities was amended effective February 7, 2021, the Board's review is limited to evidence of record at the time of the agency of original jurisdiction's decision in December 2019. Because the rating schedule changed after the evidentiary window closed, there is no evidence to consider under the new criteria. REASONS FOR REMAND Entitlement to a rating in excess of 30 percent for onychomycosis of the fingernails and toenails The Board finds that a remand is warranted in order to correct a duty to assist error that occurred prior to the January 2020 rating decision on appeal. 38 C.F.R. § 20.802. The RO obtained a VA examination in July 2019. The examiner stated that the Veteran's onychomycosis had worsened in severity but that the Veteran was unable to treat the condition due to liver damage. The examiner further indicated that the Veteran was not treated with any medication in the past 12 months or had any treatments or procedure other than systemic or topical medications in the past 12 months. The Board finds that the July 2019 VA examination is incomplete. The examiner indicated that the Veteran's onychomycosis had worsened, that he had undergone no treatment in the past 12 months, and that his prior course of treatment was stopped due to liver damage rather than because the skin condition had resolved. The examiner did not address whether the Veteran's skin condition, which had not resolved, would continue to require treatment, and if so, the nature and extent of such treatment. The Veteran's onychomycosis is rated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7813, pursuant to the General Rating Formula for the Skin, which evaluates skin conditions based in part on the nature and frequency of the treatment administered. Without such information, the Board cannot properly assign a disability evaluation. Therefore, the case must be returned for an addendum opinion to address whether treatment was, at any point throughout the appellate period, required but rendered impracticable by the Veteran's liver condition and, if so, the nature and frequency of such treatment. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional regarding the nature and severity of the Veteran's onychomycosis. The claims file must be made available to and reviewed by the examiner. The examiner is asked to opine on the following: (1) whether treatment for the Veteran's onychomycosis was, at any point throughout the appellate period, required but rendered impracticable by the Veteran's liver condition; and (2) if so, the nature and frequency of any such treatment that would have been prescribed but for the liver condition. The Board directs the examiner's attention to the rating criteria for the Veteran's onychomycosis under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7813, pursuant to the General Rating Formula for the Skin, which evaluates the disability in part based on the following treatment criteria: (i) constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period; (ii) systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period; (iii) intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period; and (iv) no more than topical therapy required over the past 12-month period. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.