Citation Nr: 21072398 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-56 684 DATE: December 3, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right ankle disability is denied. REMANDED Entitlement to service connection for a left hip disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for lumbar spine radiculopathy, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease right knee is remanded. FINDING OF FACT The Veteran's right ankle disability has been manifested by pain on motion, limitations on walking, standing lifting and bending and flare-ups, resulting in moderate limitation of motion. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps (USMC) from December 1969 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the case for further development in February 2019. The case has since been returned to the Board for appellate review. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In evaluating 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 entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 . A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3 . Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. As an initial matter, the rating criteria for musculoskeletal disabilities were amended on February 7, 2021. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7, 2021). As such, in considering whether increased ratings are warranted for the left or right ankle disability, the Board will consider whether increased ratings are warranted under the pre-amendment criteria first, and will then consider whether higher ratings are warranted under the post-amendment criteria. However, any higher ratings assigned under the amended criteria may only be effective as of the date of the amendment. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. 38 C.F.R. § 4.71a , Diagnostic Code 5271. A 20 percent rating is warranted for marked limitation of motion of the ankle. Id. Normal range of motion of the ankle is from 0 to 45 degrees plantar flexion and 0 to 20 degrees dorsiflexion. 38 C.F.R. § 4.71a , Plate II. The terms "moderate" and "marked" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2 , 4.6. The Veteran has asserted that he is entitled to a higher rating for his right ankle disability as his symptoms are worse than those contemplated by the currently assigned ratings. The Veteran is currently assigned a 10 percent rating for his right ankle. The Veteran was afforded a VA examination in May 2012. At that time, the Veteran reported that his right ankle pain had become more painful. On examination, the Veteran's right ankle plantar flexion, and dorsiflexion ended at 20 degrees; with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with 3 repetitions. Again, plantar flexion, and dorsiflexion ended at 20 degrees. There was no localized tenderness of pain on palpation, and there was no ankylosis. The examiner noted that there was no functional impairment, and that the Veteran's ankle did not impact his ability to work. In a May 2013 letter, private physician, C.P., D.O, stated he saw the Veteran in his clinic for a follow up evaluation, but mainly for completion of Veterans Administration forms. On physical examination, the physician noted the Veteran had a history of osteoarthritis of the ankles and in the past had injections of the ankles or his pain. The impression was bilateral ankle pain secondary to osteoarthritis by history. The Veteran was afforded another VA examination in June 2021. Upon examination, the Veteran's ROM was normal. There was pain on plantar flexion at 40 degrees, and at 15 degrees for dorsiflexion. The Veteran's pain on passive motion was the same as on active ROM. There was pain on weight-bearing and active motion. The Veteran was able to perform repetitive-use testing with at least three repetitions, there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined after repeated use over time, however the examiner noted that pain limited functional ability with repeated use over time, and estimated that the Veteran's plantar flexion endpoint was 40 degrees, and dorsiflexion endpoint was 15 degrees. The examination was not performed during a flare-up, but the examiner indicated that the pain, fatigability, weakness, lack of endurance, or incoordination do not significantly limit functional ability with flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). Additional contributing factors of disability noted was disturbance of locomotion described as aggravation of pain. The Veteran used a can on occasion for balance control due to bilateral foot conditions. There was no ankylosis, or any other pertinent physical findings related to his ankle disability. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication from the record that the Veteran has experienced symptoms of his disability, to include additional limitation or impairment during flare-ups or following repeated use over a period of time, that are worse than those reported at his VA examination. Based on the foregoing, the preponderance of the evidence is against a finding that an increased rating in excess of 10 percent is warranted for the right ankle disability. As noted above, under the pre-amendment criteria the terms "moderate" and "marked" are not defined. The term "marked" is defined, in pertinent part, as "having a distinctive or emphasized character." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 761 (11 ed. 2003). Synonyms for the term "marked" include noticeable, conspicuous, prominent, pronounced, and striking. THE MERRIAM-WEBSTER THESAURUS 439, 484 (2005). In this case, the examination reports reflect that he has some loss of range of motion of the right ankle. See 38 C.F.R. § 4.71 , Plate II. However, neither loss is so distinct or pronounced to more nearly approximately the degree of severity contemplated by higher ratings for the ankle, as the higher ratings contemplate limitation of motion that is distinct or emphasized. As such, an increased rating is not warranted under the pre-amendment criteria. Further, an increased rating for either ankle is not possible under the post-amendment criteria. Under the post amendment criteria, marked limitation of motion of the ankle is defined as less than five degrees of dorsiflexion or less than 10 degrees of plantar flexion. 85 Fed. Reg. at 76,464 . As noted above, the medical evidence clearly reflects that the Veteran is capable of plantar flexion and dorsiflexion of the right ankle well in excess of the limitations contemplated by a rating for marked limitation of motion of the ankle. Id. As such, an increased rating under the post-amendment criteria in effect from February 7, 2021 forward is not warranted for the right ankle. In evaluating the Veteran's current level of disability functional loss was considered. 38 C.F.R. §§ 4.40 , 4.45. However, all of the VA examiners noted that there was no evidence of additional range of motion loss after repetitive testing, which is designed to elicit further loss due to symptoms such as pain, weakness, and fatigability. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his right ankle disability. In this regard, there is no indication from the evidence of record indicating that the Veteran had limitation of motion in his right ankle that was worse than moderate in severity. With consideration of all pertinent disability factors, there remains no appropriate basis for assigning a rating in excess of 10 percent for his service-connected right ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2019). Consideration has been given to assigning staged ratings. However, at no time during the period in question have the disabilities warranted higher schedular ratings than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). No additional higher or alternative ratings under different Diagnostic Codes for the right ankle disability can be applied. All of the medical evidence reflects that, even when considering additional loss of range of motion following repeated use over time, the Veteran is still capable of moving the right ankle. Further, the VA examiners specifically noted that there was no ankylosis of the right ankle. As such, an increased rating based on ankylosis is not warranted. 38 C.F.R. § 4.71a , Diagnostic Code 5270. Further, there is no evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or a history of an astragalectomy. 38 C.F.R. § 4.71a , Diagnostic Codes 5272-5274. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to an increased rating for the Veteran's right ankle disability is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND A remand is necessary in order to ensure compliance with the February 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in the February 2019 Board remand, the agency of original jurisdiction (AOJ) was instructed to schedule the Veteran for VA examinations to determine the nature, onset and etiology of any functional impairment of the right and left hip, left knee, left ankle, low back, and lower extremities. Further, the Board directed that if the examiner determined that any such disability is not directly related to service, then he or she should express an opinion as to whether it is at least as likely as not it was caused or aggravated by his service-connected disabilities. While the AOJ obtained new opinions, the VA examiner did not adequately discuss whether any of the Veteran's claimed conditions were at least as likely as not aggravated by his service-connected disabilities. Accordingly, a remand is required to obtain new opinions. Further, the examiner appeared to base some opinions on the findings that the Veteran did not have a diagnosis of a bilateral hip disability, or right lower extremity radiculopathy. The Board notes that this finding is not consistent with the evidence of record, thus a new opinion should be obtained to reconcile the findings. Additionally, the Board remanded entitlement to service connection for a lumbar spine disability. Therefore, lower extremity radiculopathy cannot be decided until the other pending claim is decided. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Finally, the Veteran was last afforded a VA examination for his right knee disability in January 2021. At that time, the examiner specifically noted that the Veteran did not report any flare-ups of the right knee. The Board finds that finding to be inconsistent with the other evidence of record. In this regard, the January 2021 examiner noted that the pain significantly limits functional ability with flare-ups. Additionally, the Veteran has consistently reported that he experiences painful flare-ups of his right knee disability on a regular basis. Thus, a new examination should be obtained. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. A VA opinion should be obtained for the left hip, right hip, lumbar spine, lower extremities, left ankle, and left knee in accordance with the February 2019 remand directives. The examiner should be sure to address the treatment records reflecting radiating leg pain, and previous findings of pain causing functional impairment of the bilateral hips. 3. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected right knee disability. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran's functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide any of the requested findings without resorting to speculation, the examiner must state why that is so and provide a detailed rationale as to the reason why the requested findings could not be provided. 4. Confirm that the VA examination reports and any opinions provided comport with this remand, and undertake any other development found to be warranted. 5. Then, readjudicate the remaining issues on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Cannaday, 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.