Citation Nr: 21073422 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-23 131 DATE: December 8, 2021 ORDER An initial 20 percent rating for service-connected right collateral ligament ankle sprain (right ankle condition) is granted. An initial rating in excess of 30 percent for service-connected bilateral pes planus and plantar fasciitis, with degenerative arthritis (bilateral feet condition) is denied. Entitlement to a total disability rating based upon unemployability (TDIU) is denied. REMANDED An initial compensable rating for service-connected residuals of a left ganglion cyst removal (left wrist condition) is remanded. FINDINGS OF FACT 1. The record shows that the Veteran's right ankle condition including pain, medical treatment, corresponding functional impairment, results in a disability analogous to marked symptoms. 2. The record does not show that the Veteran suffers from marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation. 3. To date, the Veteran's has not submitted the requested VA form 21-8940. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for right ankle condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for a rating higher than 30 percent for feet condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code (DC) 5276. 3. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1974 to January 1975; and from October 1975 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in November 2017, July 2019 and August 2020 remanded for additional development. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. 1. Ankle condition The Veteran is currently rated under DC 5271 at 10 percent for right ankle condition, effective July 24, 2015. He reports that he is entitled to a higher rating. Under DC 5271, ankle limitation of motion, a 20 percent disability rating is warranted if it is marked and a 10 percent if it is moderate. The Board remanded this issue to determine the current severity of the Veteran's ankle condition. Subsequently, the Veteran was afforded a VA examination in September 2021. The September 2021 VA examination report shows pain, functional impairment, substantial lack of motion, lack of ability to stand or walk for long periods, cannot jump, run, or go up and down stairs, and the use of a rollator. See VA medical examination (September 2021). The Board finds that the Veteran's right ankle condition more nearly approximates a 20 percent initial rating. Indeed, his medical record shows the continuous ankle problems with pain and medical treatments. Id. Further, the Veteran reported throughout the appeal that his right ankle continues to worsen even while taking his medications. Id. The Court of Appeals for Veteran's Claims has held, "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). DC 7271 does not contemplate the effects of relief provided by medication, thus entitlement to a higher rating based on such relief may not be denied in this instance. As there is competent evidence of pain, functional impairment, substantial lack of motion, lack of ability to stand or walk for long periods, the evidence is at least evenly balanced as to whether his symptoms more nearly approximate the criteria for a 20 percent rating under DC 7271. However, a rating in excess of 20 percent is not warranted. The Board notes that the Veteran is rated under the correct DC. The Veteran's condition and symptoms are covered under DC 5271 and the Veteran is currently rated at the maximum rating allowed. DC 5271 is the appropriate DC for evaluating the Veteran's right ankle condition as the disability is specifically listed. See Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial rating of 20 percent, but not higher, for right ankle condition under DC 7271 for the appeal period is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.7. 2. Feet condition The Veteran is currently rated under DC 5276 at 30 percent for bilateral plantar fasciitis, effective July 24, 2015. He reports that he is entitled to a higher rating. Under DC 5276, acquired flatfoot, a maximum of 50 percent disability rating is warranted if the disorder is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A 30 percent rating is warranted for unilateral symptoms at the 50 percent rating. A 30 percent rating is also warranted for a bilateral disability with severe objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. The Board remanded this issue to determine the current severity of the Veteran's feet condition. Subsequently, the Veteran was afforded a VA examination in September 2021. The September 2021 VA examination report shows pain, functional impairment, limitation of motion and the use of orthotics. See VA medical examination (September 2021). The Board finds that the Veteran's feet condition more nearly approximates no more than a 30 percent rating. Indeed, his medical record shows the continuous feet problems with pain and medical treatments. Id. However, a higher evaluation is not warranted since there is no indication in the record of a pronounced condition with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Therefore, no more than a 30 percent rating is warranted for his feet condition. Given the foregoing, the Board finds the preponderance of the evidence is against the claim for a rating in excess of 30 percent for the Veteran's feet condition. As such, this issue must be denied. 3. TDIU When evidence is requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. See 38 C.F.R. § 3.158 (a). On July 2019, the Board included entitlement of TDIU on the record and remanded the issue under Rice. Additionally, on August 2020, the Board issued another remand for additional evidentiary development regarding the claim for TDIU. The RO notified the Veteran in June 2020 and requesting him to complete such form, and to date the Veteran has failed to do so. VA Form 21-8940 requests information regarding the Veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the Veteran left his last job, and whether the Veteran has attempted to obtain employment since he became too disabled to work. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158 (a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158 (a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). In making the above determination, the Board acknowledges that the Veteran has submitted statements and describing problems related to work due to his service-connected disabilities but does not include all the information noted above from the VA Form 21-8940. A grant of a TDIU cannot be made without the completion of this form. As such, the Board cannot make a finding of entitlement to a TDIU solely due to his service-connected disabilities. REASONS FOR REMAND An initial compensable rating for service-connected residuals of a left ganglion cyst removal (left wrist condition) is remanded. The Veteran currently has a noncompensable rating under DC 5215 and 7805 for his left wrist condition and left wrist scar. He reports that his condition warrants a rating in excess of 0 percent. In August 2020, the Board remanded this issue, in part, to determine the current severity of the Veteran's left wrist condition. Subsequently, the Veteran was afforded a VA examination in September 2021. The September 2021 VA examination only focused on the Veteran's service-connected left wrist scar and did not discussed if there is painful motion or limitation of motion on the left wrist. Thus, the Bord finds that another examination is warranted to determine the current severity of the Veteran's left wrist condition and symptoms, including painful motion and limitation of motion. The matters are REMANDED for the following action: 1. Obtain complete VA treatment records from June 2021 to present. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current severity of the Veteran's left wrist condition. The examiner must include all symptoms reported and noted in the examination. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left wrist condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.