Citation Nr: 21076490 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-38 048 DATE: December 23, 2021 ORDER Entitlement to service connection for the Veteran's soft tissue sarcoma (GIST tumor) as due to herbicide exposure, for purposes of entitlement to accrued benefits, is granted. Entitlement to a 20 percent rating for residuals of a fractured distal right fibula from December 24, 2014, to March 5, 2015, for purposes of entitlement to accrued benefits, is granted. Entitlement to a disability rating in excess of 20 percent from March 5, 2015, for residuals of a fractured distal right fibula disability, for purposes of entitlement to accrued benefits, is denied. FINDINGS OF FACT 1. The Veteran was likely exposed to herbicide agents while stationed at Udorn Royal Thai Air Force Base (RTAFB) in Thailand; gastrointestinal stromal (GIST) tumors are soft tissue sarcomas which are presumptively linked to herbicide exposure by statute. 2. The Veteran filed his claim for an increased rating for a right fibula disability on December 24, 2014; VA did not afford him an examination in connection with that claim until March 6, 2015; the evidence suggests that the symptoms present at the March 2015 examination were also present at the date of the claim. 3. Beginning December 24, 2015, the Veteran's service-connected right fibula disability was manifested by an overall disability picture that more nearly approximates marked limitation of motion and did not demonstrated ankylosis at any point. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for the Veteran's soft tissue sarcoma (GIST tumor) as due to Agent Orange exposure have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for a rating of 20 percent for residuals of a fractured distal right fibula have been met from December 24, 2014, to March 6, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5271. 3. For all periods on appeal, the criteria for a disability rating in excess of 20 percent disabling for residuals of a fractured distal right fibula have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, DC 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1962 to July 1982. The Veteran died in July 2015. The appellant is his surviving spouse who has successfully substituted at the appellant on the Veteran's claim pending at the time of his death. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2014 and March 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2021 correspondence the appellant withdrew her request for a Board hearing. See 38 C.F.R. § 20.704(e). Survivor benefits are a combined group of three separate benefits: dependency and indemnity compensation (DIC) benefits, accrued benefits, and survivor pension benefits. The appellant filed her claim for survivor benefits in July 2015. It is noted that she explicitly did not claim survivor pension benefits in that claim. With regard to the remaining two survivor benefits, the appellant claimed entitlement to both DIC and accrued benefits. Pursuant to 38 U.S.C. § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. See 38 U.S.C. § 1310 ; Dement v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The appellant's claim of service connection for the cause of the Veteran's death, for purposes of entitlement to DIC benefits was denied in a March 2016 rating decision; she did not appeal that denial and the overlying question of entitlement to DIC benefits is not part of this appeal. Should she seek to claim such benefits following this decision, she may file a supplemental claim and seek to reopen the prior claim to DIC benefits. Accrued benefits are monetary benefits under laws administered by the Secretary of Veterans Affairs to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death and due and unpaid, shall, upon the death of the recipient, be paid to, among other recipients, the recipient's spouse. 38 U.S.C. § 5121 (a), 5121(a)(2); 38 C.F.R. § 3.1000 (a). For accrued benefits to be granted, the recipient must have been owed money at the time of his death, or had a claim pending at the time of his death which is later granted and retroactive monetary benefits made available. As noted above, the appellant has substituted as appellant on the Veteran's claims pending at the time of this death for purposes of seeking accrued benefits. This appeal stems from a statement of the case issued in May 2016, which addressed the two issues herein adjudicated, for purposes of entitlement to accrued benefits only. Service Connection Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Presumptive service connection on the basis of herbicide exposure is authorized for specified diseases. 38 U.S.C. § 1116; 38 C.F.R. § 3.309. Certain soft tissue sarcomas (including GIST tumors) are among the diseases specified. When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease is related to service, to include the in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA has determined that there was significant use of commercial and/or tactical herbicides on the fenced-in perimeters of bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense (DoD) document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Such claimants must have served with the U.S. Air Force or Army in Thailand during the Vietnam Era at one of the RTAFBs at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang during the period from February 28, 1961, to May 7, 1975. Additionally, such claimants must have performed duties as a security policeman, security patrol dog handler, member of the security police squadron, or otherwise have served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection of a GIST Tumor The appellant seeks service connection for the Veteran's GIST tumor which she contends was caused by his in-service exposure to herbicides. The medical evidence confirms the Veteran had a diagnosis of a GIST tumor and that it has manifested to a compensable degree. Further, the appellant provided an October 2021 statement from Dr. L.B. from the Veteran's primary care physician. In this statement, Dr. L.B. indicated that she had been the Veteran's primary care physician for 30 years and that his metastatic GIST tumor was a soft-tissue sarcoma which she believed was etiologically related to the Veteran's in-service herbicide exposure. As noted above, the Veteran's GIST tumor condition shall be presumed to have been caused by service if he was exposed to herbicides. The Board briefly observes that the Veteran's service treatment records (STRs) do not show any treatment for or diagnosis of any soft tissue sarcomas in service, and as such, direct service connection is not warranted. The central issue that must be resolved is whether the Veteran was exposed to herbicides during his service in Thailand. The Veteran stated that during his tour of duty in Thailand he was stationed at the Udorn RTAFB. His military personnel file confirms his service at the above-noted Air Base from between 1970 and 1971 as a photo lab technician. The Veteran provided a lay statement regarding his service at Udorn RTAFB. In this statement the Veteran explained that his duty area was kept far away from the main populous of the base and that he was on the "most-outer rim" of the base. The Veteran continued that he was in charge of cleaning up spilled chemicals which they kept there and which were sprayed around the perimeter at least two times per day. The Veteran further reported that service members used to spray each other with the herbicides "to be funny" since it would cool you off and they did not know how hazardous it was. The appellant provided a statement wherein she indicated that the Veteran had direct contact with herbicides while he was stationed in Thailand and that he worked with other chemicals during the course of his Air Force career. The statements provided by the Veteran over the course of this claim have been consistent and facially plausible and the Board finds no reason to question his veracity. See Caluza v. Brown, 7 Vet. App. 498 (1995). Thus, resolving any reasonable doubt in favor of the Veteran, the Board concedes the Veteran's exposure to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Because the Board is willing to find that the Veteran was exposed to herbicides in service, and he was diagnosed with a soft tissue sarcoma GIST tumor that manifested to a compensable degree following his discharge from service, service connection is warranted for the disorder on a presumptive basis and the claim should be granted for purposes of entitlement to accrued benefits only. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. See 38 C.F.R. § 4.7. In both initial rating claims and non-initial increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). 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). The retroactive reach of a revised regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. However, as the entirety of this claim takes place before the effective date of the new regulation, the Board will not address it further, as it cannot apply via the limits of its retroactive reach. 2. Entitlement to a rating in excess of 10 percent from December 24, 2014, to March 6, 2015, and in excess of 20 percent thereafter for residuals of a right fibula injury The Veteran filed his claim for an increased rating in excess of 10 percent for his residuals of a right fibula injury on December 24, 2014, thus commencing the appeal period in question. The rating decision on appeal granted an increased rating of 20 percent for the Veteran's disability, effective March 6, 2015, the date of his VA examination in connection with the claim. Thus, during the appeal period, from December 24, 2014, to March 6, 2015, the Veteran's disability was rated 10 percent disabling, with a 20 percent disability rating thereafter... The Veteran's right fibula residuals were rated under Diagnostic Code 5271, governing limitation of motion of the ankle. Under the old rating criteria, Diagnostic Code 5271 provides a 10 percent rating is warranted for moderate limitation of motion of the ankle, and a 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Effective February 7, 2021, the rating criteria was revised/clarified to indicate that a 10 percent rating is warranted for moderate limitation of motion (defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a 20 percent rating is warranted for marked limitation of motion (defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) The Board notes that normal range of motion for the ankle on dorsiflexion is to 20 degrees and to 45 degrees on plantar flexion. See 38 C.F.R. § 4.71a, Plate II. Other diagnostic codes for disabilities of the ankle follow. Ankylosis (bony fixation) of either ankle, depending upon the favorability of the angle of fixation, warrants evaluation from 20 to 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Ankylosis of the subastragalar or tarsal joint in good weight-bearing position warrants a 10 percent evaluation, while such ankylosis in a poor weight-bearing position warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5272. Malunion of the os calcis or astragalus with moderate deformity warrants a 10 percent evaluation, and marked deformity warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5273. Astragalectomy warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5274. The appellant claims that the Veteran's right fibula residuals disability is entitled to a disability rating in excess of 10 percent prior to March 6, 2015, and in excess of 20 percent thereafter. For the reasons below, the Board finds that a 20 percent rating should be granted from December 24, 2014, the date of his claim, but that a rating in excess of 20 percent is not warranted at any period on appeal. The Veteran's VA treatment records indicate treatment for his right ankle condition, and that he was service connected for limitation of his right ankle's motion, however, no records show a disability picture significantly worse thanor different fromthe below cited VA examination. Indeed, the below cited VA examination was the basis for the RO grant of the Veteran's disability rating increase to 20 percent. Further the treatment records do not indicate the Veteran experiences ankylosis, os calcis or astragalus, or astragalectomy. The Veteran was afforded a March 6, 2015, VA ankle examination. The examiner diagnosed the Veteran with a distal fibular fracture. During the examination the Veteran reported that he does not experience flare-ups and intermittent pain with no clicking, popping, or catching. The Veteran's right ankle range of motion was recorded as dorsiflexion of 0 to 5 degrees (normal 0 to 20) and plantar flexion 0 to 20 degrees (normal 0 to 45). The examiner noted that the Veteran's limitation of motion created an altered gait and problems with balance. Pain was noted on the Veteran's examination, but it did not cause functional loss. The Veteran did not lose any additional range of motion with repetitive use testing. The examiner indicated that the Veteran's right ankle had no ankylosis. Based on this evidence, the Board is satisfied that the Veteran has shown marked limitation of ankle motion, particularly showing between 0 and 5 degrees of dorsiflexion. As such, the Board finds that this examination supports a 20 percent rating based on the schedular criteria. The Board notes that this examination did not specifically address range of motion testing in passive vs. acting and weight bearing vs. non-weight bearing movement, as required by recent development by the Court of Appeals for Veterans Claims (Court) in the matter of Correia v. McDonald, 28 Vet. App. 158 (2016). While the general remedy for an examination that does not meet the Correia criteria is a remand for a new examination, the Board finds that such development is not necessary in this matter. Initially, as the Veteran has passed away, he would not be available to submit for a new examination to fully assess the ankle in all ranges of motion. Additionally, the Veteran's disability can only be granted a higher schedular rating based on a finding of ankylosis, which was addressed in the examination in more than adequate terms. While the March 2015 VA examiner found the Veteran's ankle was not ankylosed, consideration must still be given to whether he is functionally ankylosed in the right ankle. Cf. Chavis v. McDonough, U.S. Court of Appeals for Vet. Claims No. 18-2928 (decided April 16, 2021). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Here, the Veteran reported intermittent pain as well as limitation of motion. The Veteran did not indicate that he experienced flare-ups or further limitation after repetitive use. The Board finds the evidence of record does not support that the Veteran's right ankle is immobile. While the Veteran reported that he had an altered gait, he did not describe that his ankle was immobile. Indeed, the Veteran reported that he remained active and assisted with house chores including mowing the lawn. This is corroborated by the evidence of record including the VA examiner's opinion that there is not loss of range of motion during repetitive use. In order to receive a compensable disability rating under Diagnostic code 5270, there must be ankylosis in the Veteran's ankle, which the Veteran did not have. The Board has considered the evidence of record. The Board notes that the VA examiner is a medical professional, competent to measure motion, determine physical characteristics and deformities, and opine as to the severity of the Veteran's right ankle disability. There is no evidence that the March 2015 examiner is not credible. Moreover, the examiner provided an analysis based upon both subjective and objective information to form an opinion based upon medical expertise. As such, the Board affords the March 2015 VA examination significant probative weight regarding the severity of the condition at the time. With regard to the effective date of the 20 percent increased rating, the general principle is that the effective date of an increased rating is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). In determining when an increase is "factually ascertainable," the rating party should look to all of the evidence including testimonial evidence and expert medical opinions regarding when the increase took place. VAOPGCPREC 12-98. In this matter, the Board notes that, while the Veteran's disability was not documented to have increased until March 6, 2015, the date of his examination, he claimed his increase on December 24, 2014, less than three months prior. VA could not reasonably provide the Veteran with an examination the same date of his claim. Further, the fact that the Veteran claimed an increase, which was proven so soon after the date of the claim speaks to the increase occurring at least at the time of the claim. There is no evidence to suggest that the Veteran's ankle was significantly less limited in terms of symptoms in the period between December 24, 2014, and March 6, 2015. As such, the Board will afford the benefit of the doubt and grant the 20 percent rating from December 24, 2014, the date of the claim for an increase. In short, the Board finds that a 20 percent rating, but no higher should be granted from the date of the claim for an increase, December 24, 2014. The Board has considered whether a separate or higher rating is warranted under the other Diagnostic Codes related to disabilities of the ankle. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Ankylosis of the subastragalar or tarsal joint was not found rendering DC 5272 not for application. Malunion of os calcis or astragalus has not been found. Thus, DC 5273 is not applicable. Additionally, astragalectomy has not been noted within the Veteran's treatment records or examinations under DC 5274. Further, the Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserted that his disabilities entitled him to a higher disability rating, such statements are inconsistent with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). (Continued on the next page) As such, the Board finds that from December 24, 2014, to March 6, 2015, an increased rating of 20 percent for the residuals of a right fibula injury should be granted for purposes of entitlement to accrued benefits. However, for the remaining period on appeal, a rating in excess of 20 percent is not supported. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.