Citation Nr: 21076849 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-24 115 DATE: December 28, 2021 ORDER Entitlement to a 20 percent rating effective February 12, 2020, for a left ankle disability is granted. Entitlement to service connection for a lumbar spine disability, to include degenerative joint disease, as secondary to a service-connected left ankle disability, is granted. Entitlement to service connection for headaches as secondary to service-connected status post injury to status post injury to left orbital region with sensory impairment of left trigeminal nerve is granted. REMANDED Entitlement to service connection for residuals of head trauma, including intracranial hemorrhage, to include as secondary to service-connected status post injury to left orbital region with sensory impairment of left trigeminal nerve, is remanded. Entitlement to a compensable disability rating for status post injury to left orbital region with sensory impairment of left trigeminal nerve is remanded. FINDINGS OF FACT 1. The record evidence shows that effective February 12, 2020, the Veteran's service-connected left ankle disability is manifested by, at worst, marked limited motion without ankylosis. 2. The record evidence shows that the Veteran's service-connected left ankle disability aggravated his current lumbar spine disability. 3. The record evidence shows that the Veteran's service-connected status post injury to left orbital region with sensory impairment of left trigeminal nerve aggravated his current headaches. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating effective February 12, 2020, for left ankle disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.71a, Diagnostic Codes (DCs) 5003-5271 (2020). 2. The criteria for service connection for a lumbar spine disability, to include degenerative joint disease, as secondary to a service-connected left ankle disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2020). 3. The criteria for service connection for headaches as secondary to service-connected status post injury to left orbital region with sensory impairment of left trigeminal nerve have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1976 to February 1977 and September 1979 to June 1981. This appeal has a long procedural history. In November 2018, the Board determined that new and material evidence had been received sufficient to reopen a previously denied claim of service connection for degenerative joint disease of the lumbosacral spine. The Board also remanded the issues of entitlement to increased ratings for service-connected status post injury to left orbital region with sensory impairment of left trigeminal nerve and left ankle disability and entitlement to service connection for intracranial hemorrhage, headaches, and degenerative joint disease of lumbosacral spine to the Department of Veterans Affairs (VA) Regional Office (RO) for additional development. There was substantial compliance with the November 2018 remand directives only with respect to the issues discussed below on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, private treatment records from Mercy Hospital Forth Smith were identified by the Veteran and obtained and associated with the record. VA treatment records dated from April 2016 to July 2020 were obtained and associated with the record. The Veteran was provided VA Disability Benefits Questionnaire (DBQ) examinations for back (thoracolumbar spine) conditions in February and November 2020, VA DBQ examination for headaches in February 2020, and VA DBQ examination for ankle conditions in February 2020. These issues were readjudicated in November and December 2020 supplemental statements of the case (SSOCs). The Board notes that, in December 2011, an informal request for service connection for intracranial hemorrhage, to include cognitive and coordination limitations, including as secondary to his service-connected status post injury to left orbital region with sensory impairment of left trigeminal nerve, was received. Having reviewed the record evidence, the Board has recharacterized this claim as stated above. The Board acknowledges that the disability ratings for musculoskeletal disabilities were revised effective February 7, 2021. As relevant to this appeal, DC 5003 was recharacterized as degenerative arthritis other than post-traumatic and otherwise was not changed. In contrast, DC 5271 was revised effective February 7, 2021. As a result, the Board will consider the Veteran's increased rating claim for a left ankle disability under the former and revised DC 5271. The criteria which is more favorable to the Veteran will be applied. 1. Entitlement to a disability rating greater than 10 percent for a left ankle disability The Board considers whether a disability rating greater than 10 percent for left ankle disability is warranted at any time since or within one year prior to the date of claim on December 12, 2011. See 38 C.F.R. § 4.71a, DC 5003-5271. The Board notes initially that VA examination for ankle conditions in January 2012 reflects the Veteran underwent diagnostic testing that revealed a clinical finding of arthritis in the left ankle. Nevertheless, since a compensable limitation of motion has been met, a higher rating under DC 5003 is not applicable at any time during the appeal period. As such, the Board finds that a rating in excess of 10 percent for left ankle disability is not warranted at any time during the appeal period. See 38 C.F.R. §§ 4.6, 4.71a, DC 5003. Review of the evidentiary record since December 12, 2010 (one year prior to the date of claim) shows that, at a VA examination for ankle conditions in January 2012, the Veteran's reported medical history noted unchanged from previous VA examination in April 2006, currently snaps and pops with walking, continuous and daily pain, pain aggravated by standing and walking, and use of medication, hot soaks, rest and elevation for alleviation of pain. Upon clinical evaluation of the left ankle, he demonstrated active plantar flexion to 45 degrees or greater and active dorsiflexion to 20 degrees or greater, and constant use of a cane. There were no findings of objective evidence of painful ative motion, additional functional loss or range of motion after repetitive-use testing, any functional loss and/or functional impairment of the ankle, pain on palpation, instability, or ankylosis. At the VA examination for ankle conditions in February 2020, the Veteran's reported medical history noted current symptoms of left ankle pain, flare-ups described as "it just feels like it's more less twisted again, it's hurting right now," and functional loss or functional impairment described as "I can't walk very far" and left ankle pain is aggravated by walking or standing for extended periods of time. Upon clinical evaluation of the left ankle, he demonstrated active and passive plantar flexion to 45 degrees, active and passive dorsiflexion to 20 degrees, pain on rest/non-movement, pain with weight bearing, pain with non-weight bearing, pain and weakness after repetitive use over time and during flare-ups without decrease in range of motion, instability or dislocation suspected, and occasional use of a cane. He also demonstrated interference with standing on the left side. There were no findings of crepitus or additional functional loss or range of motion after repetitive-use testing. The VA examiner confirmed the current diagnosis of residuals of fracture of the left ankle with limitation of dorsiflexion and indicated there was no change in the service-connected diagnosis and no additional diagnoses have been rendered. With regard to the appeal period prior to the VA examination on February 12, 2020, the Board finds that the functional equivalent of marked limitation (under the old rating criteria) or marked limitation by less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion (under the new rating criteria) was not shown at any time, even when considering the Veteran's reported symptomatology for the service-connected left ankle disability. While he demonstrated full range of motion of the left ankle, he also reported constant use of a cane and reported his left ankle snaps and pops with walking, continuous pain, and use of medication and other methods to alleviate pain, which is contemplated in the currently assigned 10 percent disability rating under the old and new rating criteria. To meet the next higher (and maximum) rating of 20 percent, marked limited motion (under the old rating criteria) or marked limited motion by less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion (under the new rating criteria) would need to have been shown. See 38 C.F.R. § 4.71a, DC 5271 (effective before and after February 7, 2021). When viewed in conjunction with the medical evidence, the Veteran's reported symptomatology does not establish additional limitation of motion to the degree which warrant the a 20 percent rating at any time during the appeal period prior to February 12, 2020 under 38 C.F.R. §§ 4.40, 4.45 and the holdings in DeLuca and Mitchell. As such, the Board finds that a disability rating greater than 10 percent for the service-connected left ankle disability is not warranted at any time during the appeal period from December 12, 2010 to February 11, 2020. See 38 C.F.R. §§ 4.6, 4.71a, DC 5271. With regard to the appeal period since the VA examination on February 12, 2020, the Board finds that the service-connected left ankle disability more closely approximates marked limitation of motion (under the old rating criteria) which is more favorable to the Veteran. Thus, a 20 percent rating is warranted since February 12, 2020. See 38 C.F.R. § 4.71a, DC 5271. At this VA examination, review of the evidentiary record shows that he demonstrated full range of motion of the left ankle. His left ankle symptomatology included pain on rest/non-movement, pain with weight bearing, pain with non-weight bearing, pain and weakness after repetitive use over time and during flare-ups without decrease in range of motion, instability or dislocation suspected, occasional use of a cane, as well as interference with standing on the left side. Given that the Veteran already is in receipt of the maximum schedular rating for limitation of motion of the ankle effective February 12, 2020, inquiry into the DeLuca factors is moot. See DeLuca, 8 Vet. App. at 206; Johnston v. Brown, 10 Vet. App. 80, 87 (1997). As such, the Board finds that the criteria for a 20 percent rating effective February 12, 2020 for the service-connected left ankle disability is warranted. The Board finally notes that a disability rating greater than 20 percent is not warranted for the service-connected left ankle disability at any time during the appeal period. Although the Veteran demonstrates clinical findings of limitation of motion of the left ankle, the medical evidence shows that he retains mobility in the ankle. In fact, the January 2012 and February 2020 VA examiners both marked "no" for any findings of ankylosis of the Veteran's left ankle. Therefore, ankylosis is not present. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). As a result, the Board finds that a higher rating for service-connected left ankle disability based on ankylosis is not warranted. The Board considered the Veteran's reported history of symptomatology related to the service-connected left ankle disability. He is competent to report symptoms and observations, such as snapping, popping, pain, twisting, and difficulty walking far, because this requires only personal knowledge as it comes through one's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, although the descriptions of his symptoms are competent and credible, they do not show that the criteria for increased ratings for his left ankle disability have been met. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In other words, the Board finds the medical evidence of record more probative than the Veteran's subjective reported worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Service Connection 2. Entitlement to service connection for a lumbar spine disability The Veteran has current diagnoses of a lumbar spine disability as noted in VA DBQ examinations for back (thoracolumbar spine) conditions. Specifically, the examination report in January 2012 reflects a diagnosis of degenerative disc disease (DDD) and clinical findings of arthritis. The February 2020 examination reflects a diagnosis of degenerative joint disease (DJD) and clinical findings of arthritis. The November 2020 examination reflects diagnoses of degenerative arthritis and intervertebral disc syndrome (IVDS). Additionally, review of VA treatment records reflects a diagnosis of spinal stenosis of the lumbar spine. As a result, the Board finds the element of a current disability has been met in this case. In the February 1993 VA rating decision, the issue of service connection for left ankle disability was granted. As a result, the Board finds the element of a service-connected disability has been met in this case. Following the clinical evaluation and review of the claims file in February 2020, the VA examiner concluded, in part, the recurrent lumbosacral spine disability was aggravated by the service-connected left ankle disability. This examiner explained, "It is medically known overcompensation for an injury, as in this case the left ankle, can cause pain in other areas. Therefore the pain from overcompensation is aggravating the pain that is already present." This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In summary, and after resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for a lumbar spine disability as secondary to his service-connected left ankle disability is warranted. 3. Entitlement to service connection for headaches In December 2011, the Veteran's informal request for service connection for headaches as secondary to his service-connected status post injury to left orbital region with sensory impairment of left trigeminal nerve was received. The Veteran has a current diagnosis of headaches. Specifically, the February 2020 VA DBQ examination for headaches reflects a diagnosis of tension headaches. As a result, the Board finds the element of a current disability has been met. In the October 1995 VA rating decision, the issue of service connection for status post injury to left orbital region with sensory impairment of left trigeminal nerve was granted. As a result, the Board finds the element of a service-connected disability has been met in this case. Following the clinical evaluation and review of the claims file in February 2020, the VA examiner concluded, in part, it is at least as likely as not that any recurrent headaches was aggravated beyond the natural progress of the service-connected status post injury to left orbital region with sensory impairment of left trigeminal nerve. This examiner explained, "It is medically known the trigeminal nerve is the chief sensory nerve of the face. When activated, the trigeminal nerve leads to the pain that can be associated with headaches [and] this could increase the severity beyond the natural progress." This opinion was fully supported. See Stefl, 21 Vet. App. at 124. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for headaches as secondary to his service-connected status post injury to left orbital region with sensory impairment of left trigeminal nerve is warranted. REASONS FOR REMAND 1. Entitlement to service connection for residuals of head trauma, including intracranial hemorrhage, to include as secondary to service-connected status post injury to left orbital region with sensory impairment of left trigeminal nerve, is remanded. The Veteran contends that he incurred residuals of head trauma, including intracranial hemorrhage, during service and experienced continuous post-service disability. He alternatively contends that his service-connected status post injury to left orbital region with sensory impairment of left trigeminal nerve caused or aggravated his residuals of head trauma. The Board acknowledges that this claim has been remanded previously. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). In October 2019 the RO requested an examination for head trauma residuals. An Exam Scheduling Request Clarification Response indicates, in part, an examination for traumatic brain injury (TBI) was scheduled. A November 2019 Exam Scheduling Request Contention Cancellation form indicates the examination for head trauma residuals was cancelled at VA's request. In November 2019, the RO requested another examination for head trauma residuals; however, a November 2019 VA Form 27-0820 (Report of General Information) notes that the Veteran called to reschedule this examination to a location closer to his home. As a result, a December 2019 Exam Scheduling Request Contention Cancellation form indicates the examination for head trauma residuals was cancelled because the Veteran was unavailable for examination. In December 2019 the RO requested another examination for head trauma residuals; however, two December 2019 VA Form 27-0820 indicate that the Veteran called to reschedule this examination to a location closer to his home. A March 2020 Exam Scheduling Request Contention Cancellation form indicates the examination for head trauma residuals was cancelled at the Veteran's request. In August 2020 the RO requested another examination for head trauma residuals; however, the Veteran reported in an August 2020 VA Form 27-0820 that he went to all of the examinations and the VA examiner went over all his conditions and addressed the head trauma condition with his headaches. As a result, a September 2020 Exam Scheduling Request Modification form indicates the examination request for head trauma residuals was cancelled at VA's request. A September 2020 Exam Scheduling Request Clarification Response indicates the RO's request to clarify if a TBI examination is required; however, no examination for TBI was requested or scheduled. The United States Court of Appeals for Veterans Claims (Court) has held that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). Given the foregoing, the Board finds that, on remand, an examination should be scheduled which addresses this matter. The Veteran is advised to report for this examination when it is scheduled. He also is advised that a failure to report for this examination, without good cause, may result in the denial of his claim. See 38 C.F.R. §§ 3.655(a)-(b). 2. Entitlement to a compensable disability rating for status post injury to left orbital region disability is remanded. Pursuant to the November 2018 Board remand, the Veteran was provided a VA examination for cranial nerves diseases in February 2020 to assess the severity of his service-connected status post injury to left orbital region disability. While the VA examiner noted the Veteran's medical history included the cranial nerve V (trigeminal) was affected by this service-connected disability on appeal, this examiner also indicated there were no clinical findings of cranial nerve V (trigeminal) affecting the right or left side. Moreover, the VA examiner marked the following findings, signs, or symptoms attributable to any condition affecting cranial nerves V, VII, and/or IX-XII: moderate paresthesias and/or dysesthesias of the left side for the upper face, mid face, lower face, and side of mouth and throat. The Board notes in this regard that, when VA undertakes to provide a VA examination or medical opinion, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Having reviewed the February 2020 VA examination, the Board finds that it is inadequate for VA adjudication purposes and, on remand, another examination should be provided which addresses this matter. The matter is REMANDED for the following actions: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for examination to determine the nature and etiology of his residuals of head trauma. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that residuals of head trauma, to include intracranial hemorrhage, is related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected status post injury to left orbital region with sensory impairment of left trigeminal nerve caused or aggravated his residuals of head trauma, to include intracranial hemorrhage. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each of the residuals of head trauma, to include intracranial hemorrhage, currently experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for residuals of head trauma, to include intracranial hemorrhage, alone, is insufficient rationale for a medical nexus opinion. 3. Schedule the Veteran for examination to determine the current nature and severity of his service-connected status post injury to left orbital region with sensory impairment of left trigeminal nerve. If possible, this examination should be conducted by a clinician other than the clinician who conducted the February 2020 VA examination. 4. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.