Citation Nr: 21076229 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-29 452 DATE: December 22, 2021 ORDER A rating of 20 percent for residuals of a recurrent right ankle sprain and partial chronic tear of the anterior talofibular ligament is granted. REMANDED The claim for service connection for a neck disability is remanded. The claim for service connection for loss of sense of taste is remanded. The claim for service connection for loss of sense of smell is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's residuals of a recurrent right ankle sprain and partial chronic tear of the anterior talofibular ligament has been manifested by disability more nearly approximating marked limitation of motion of the ankle. CONCLUSION OF LAW The criteria for a rating of 20 percent for residuals of a recurrent right ankle sprain and partial chronic tear of the anterior talofibular ligament have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5271 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2000 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2020, at which time the Board remanded the claims for a higher rating for a right ankle disability, service connection for a neck disability, and entitlement to TDIU for further development. The Board denied the Veteran's claims for service connection for loss of taste and smell, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted a Joint Motion for Remand (Joint Motion), vacating the portion of the Board's December 2020 decision denying service connection for loss of taste and smell and remanding those claims to the Board for readjudication. All of the aforementioned claims have been returned to the Board. The Board notes that in August 2021, the Veteran appealed the effective date for the assignment of a 20 percent rating for his low back disability. However, that appeal is being processed under the modernized review system, also known as the Appeals Modernization Act (AMA); therefore, it will be addressed in a separate decision. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Entitlement to a rating in excess of 10 percent for residuals of a recurrent right ankle sprain and partial chronic tear of the anterior talofibular ligament Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of motion of the ankle, and a maximum 20 percent rating is assigned for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Words such as "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 the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2020). The Rating Schedule provides guidance by defining full range of motion of the ankle as 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II (2020). Upon review of the record, the Board finds that the criteria for a rating of 20 percent for a right ankle disability have been more nearly approximated. The Veteran underwent a VA ankle examination in November 2016, during which he reported right ankle pain and stiffness, which was aggravated by weight bearing, and for which he regularly wore an ankle brace. Range of motion testing revealed dorsiflexion to 10 degrees and plantar flexion to 30 degrees with objective evidence of pain with motion in both directions. The Veteran underwent another VA ankle examination in January 2021, during which he reported chronic pain, instability, and occasional swelling of the right ankle, for which he regularly wore a brace. It was noted that the Veteran's right ankle pain affected his ability to engage in prolonged walking, standing, and driving; climb stairs; and lift or carry any additional weight. The Veteran also reported being unable to run due to right ankle pain. Range of motion testing revealed 30 degrees of plantar flexion and 10 degrees of dorsiflexion, with objective evidence of pain with motion in both directions. VA treatment records during the period under review show similar complaints of right ankle pain. In summary, the evidence of record shows that the Veteran's right ankle exhibited about 50 percent of full dorsiflexion and 67 percent of full plantar flexion with objective evidence of pain in both directions, which affected the Veteran's ability to walk, stand, drive, climb stairs, and lift/carry, and prevented him from running. Based on the foregoing, the Board finds that the Veteran's right ankle disability more nearly approximated marked limitation of motion. Accordingly, a 20 percent rating is granted. This is the highest rating available based on limitation of motion of the ankle. The Board finds that a rating in excess of 20 percent is not warranted at any time, as ankylosis of the right ankle has not been shown such that a higher rating would be warranted. Accordingly, a rating in excess of 20 percent is denied. See 38 C.F.R. § 4.71a, Diagnostic Codes 5271, 5271. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning a rating in excess of that already assigned, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. The claim for service connection for a neck disability is remanded. In a June 2021 brief, the Veteran's attorney asserted that a current neck disability may be secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD), migraine headaches, lumbosacral degenerative disc disease, right ankle disability, tinnitus, and/or allergic sinusitis. The Veteran's attorney also submitted several articles, which he asserts supports his assertion. Accordingly, the claim for service connection for a neck disability is remanded in order to obtain a supplemental opinion addressing secondary service connection. See 38 C.F.R. § 3.310(a); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Additionally, VA treatment records note that the Veteran is under the care of Dr. Davidson for degenerative joint disease involving the neck and back. As such records may be relevant to the Veteran's claim for service connection for a neck disability, the Veteran should be asked to submit or request that VA obtain private treatment records from Dr. Davidson. 2. The claim for service connection for loss of sense of taste is remanded. 3. The claim for service connection for loss of sense of smell is remanded. In the July 2021 Joint Motion, the parties agreed that the Board erred in failing to remand the claims for service connection for loss of taste and smell as inextricably intertwined with the claim for service connection for a neck disability. Accordingly, those claims are remanded for contemporaneous adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 4. The claim of entitlement to TDIU is remanded. In the October 2020 decision and remand, the Board determined that a claim for TDIU was apparently raised by the record as part of the Veteran's claim for an increased rating for his right ankle disability and directed the agency of original jurisdiction (AOJ) to send the Veteran a Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and invite him submit information regarding his employment status and history. The record shows that during the course of the claim, the Veteran reported being employed or working in construction as an independent contractor, and he has not responded to VA's request for information regarding his employment status. However, in a June 2021 brief, the Veteran's attorney asserted that the Veteran is entitled to TDIU. On remand, the Veteran should be asked to complete a VA Form 21-8940 with the names and addresses of all employers for whom he worked throughout the course of the claim, as well as proof of income for any self-employment or work as an independent contractor. The Veteran is advised that his failure to cooperate in the development of his claim could result in denial of the claim. See 38 C.F.R. § 3.158 (2020); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. As the Veteran to submit or request that VA obtain private treatment records from Dr. Davidson. 2. Ask the Veteran to complete VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) which includes the names and addresses of all employers for whom he worked since October 2016. Based on his response, VA should request a completed VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) from each employer identified. If the Veteran has been self-employed or worked as an independent contractor at any time since October 2016, ask him to provide financial information, such as income tax return forms that include his net and gross profits for all periods of self-employment and/or his Form 1099 for any work he performed as an independent contractor. 3. Schedule the Veteran for another VA examination pursuant to his claim for service connection for a neck disability. After examination and review of the claims file, the examiner should answer the following: (a.) Is it at least as likely as not (50 percent probability or greater) that a current neck disability was caused by the Veteran's service-connected PTSD, migraine headaches, lumbosacral degenerative disc disease, right ankle disability, tinnitus, and/or allergic sinusitis? Please explain why or why not. (b.) Is it at least as likely as not (50 percent probability or greater) that a current neck disability was aggravated by the Veteran's service-connected PTSD, migraine headaches, lumbosacral degenerative disc disease, right ankle disability, tinnitus, and/or allergic sinusitis? Please explain why or why not. The examiner's opinions should reflect consideration of the articles submitted by the Veteran's attorney (VBMS Correspondence, received 6/25/21), as well as the article cited as available at https://journals.plos.org/plosbiology/article?id=10.1371/journal.pbio.2002811. 4. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.