Citation Nr: 21077186 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-05 423 DATE: December 28, 2021 ORDER Entitlement to an increased, 40 percent disability evaluation for status-post total right ankle replacement, for the rating period prior to September 26, 2017, is granted. REMANDED Entitlement to an increased disability evaluation for partial tear, anterior cruciate ligament, right knee, post-operative, with scars and instability, currently rated as 20 percent disabling, is remanded. Entitlement to an increased disability evaluation for right knee, status-post surgery, partial tear, anterior cruciate ligament, with limitation of motion, currently rated as 10 percent disabling, is remanded. Entitlement to an increased disability evaluation for status-post right total ankle replacement, for the rating period since September 26, 2017 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the rating period prior to September 26, 2017, the Veteran's status-post total right ankle replacement is manifested by chronic residuals consisting of severe painful motion and weakness. CONCLUSION OF LAW The criteria for a disability evaluation of 40 percent, but no higher, for right total ankle replacement, for the rating period prior to September 26, 2017, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5056 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from April 1980 to December 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a virtual hearing before the undersigned Veterans Law Judge (VLJ) of the Board in September 2021. A transcript of that proceeding has been associated with the Veteran's electronic claims file. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Notably, during the appeal period, changes were made to 38 C.F.R. § 4.71a, Diagnostic Code 5056. Effective February 7, 2021, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5051, 5201, 5242, and 5243). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. Entitlement to an increased disability evaluation for status-post total right ankle replacement, currently rated as 20 percent disabling, for the rating period prior to September 26, 2017. The Veteran's right ankle replacement is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5056. The Veteran received a 100 percent disability evaluation under this Code from June 1, 2007 to July 31, 2008. Diagnostic Code 5056 assigns a 100 percent disability rating for one year following implantation of a prosthetic replacement of the ankle joint. A 40 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. For intermediate degrees of residual weakness, pain or limitation of motion, the ankle should be rated by analogy to Diagnostic Codes 5270 and 5271. The minimum rating is 20 percent. The Board notes that Diagnostic Code 5056 was amended effective February 7, 2021. However, the only changes to the provision were the addition of a noncompensable disability evaluation for resurfacing of the joint and additional notes to the existing rating criteria. In pertinent part, the additional notes indicate that when an evaluation is assigned for joint resurfacing or the prosthetic replacement of a joint under diagnostic codes 5051-5056, an additional rating under §4.71a may not also be assigned for that joint, unless otherwise directed; a revision procedure should only be evaluated in the same manner as the original procedure under diagnostic codes 5051-5056 if all the original components are replaced; the 100 percent rating for 1 year following implantation of prosthesis will commence after initial grant of the 1-month total rating assigned under §4.30 following hospital discharge. Since none of these amendments affect the evaluation of the Veteran's ankle replacement, during the rating period discussed herein, no further discussion of the amendments will be made. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5055). Diagnostic Code 5270 applies to ankylosis (total loss of joint mobility) of the ankle; a 20 percent disability evaluation is warranted for ankylosis in plantar flexion, less than 30 degrees. Ankylosis in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees warrants a 30 percent disability evaluation. A 40 percent disability rating is warranted for ankylosis in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limitation of motion, and a 20 percent rating is warranted for marked limitation of motion. Prior to February 7, 2021, the words moderate and marked were not defined in the regulations. Effective February 7, 2021, limited motion of the ankle under DC 5271 is more specifically defined. Moderate limited motion, which is still to be rated as 10 percent disabling, is defined as "less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion." Marked limited motion is still to be rated at a maximum 20 percent disabling and is defined as "less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion." See 85 Fed. Reg. 76464 (Nov. 30, 2020). The 20 percent rating provided in Diagnostic Code 5271 is the highest rating available for limitation of motion for ankle disabilities. For the time period prior to September 26, 2017, a 40 percent disability rating, but no higher, is warranted for the Veteran's service-connected right ankle total replacement under 38 C.F.R. § 4.71a, Diagnostic Codes 5056, 5270, and 5271. The Board has considered entitlement to higher ratings under Diagnostic Codes 5270, as directed by Diagnostic Code 5056. The Veteran does not contend, and the medical evidence of record does not demonstrate, that the Veteran has ankylosis of the right ankle; as noted, Diagnostic Code does not provide for a rating in excess of 20 percent for limitation of motion of the ankle. As such, a higher rating under Diagnostic Code 5270 or 5271 is not available. The October 2014 and September 2017 VA examination reports reflect that the Veteran does not have ankylosis. After a thorough review of the evidence of record, the Board finds that, for the entire rating period on appeal, the Veteran's disability picture more nearly approximates the criteria for an increased, 40 percent disability rating, but no higher, for his service-connected right total ankle replacement in accordance with Diagnostic Code 5256, for the rating period prior to September 26, 2017. In this regard, the Board finds that the Veteran experiences severe, chronic residuals of an ankle replacement consisting of severe painful motion or weakness in the right ankle. VA treatment records, as well as the October 2014 VA examination report, reflect that the Veteran experiences pain and swelling of the right ankle with weakened movement and tenderness to palpation. At his September 2017 VA examination, the Veteran described his residual pain as moderate to severe and complained of decreased flexibility of the right ankle. As such, the Board finds that the Veteran's symptoms are of such severity that a 40 percent under Diagnostic Code 5056 is warranted. Nevertheless, the Board finds that there is no basis for the assignment of any higher rating based on consideration of functional loss of the right ankle. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2020); Deluca, 8 Vet. App. at 204-06; Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The Board has considered the Veteran's reports of pain, reduced range of motion, and flare-ups. However, upon physical examination, the Veteran has not demonstrated limitation of dorsiflexion or plantar flexion of the right ankle to warrant the assignment of a higher evaluation. The evidence reflects that the currently assigned 40 percent disability rating properly compensates the Veteran for the extent of functional loss resulting from pain and reduced range of motion of the right ankle. Here, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation during the appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The Board acknowledges that the Veteran has a right ankle scar. However, the record does not reflect, and the Veteran has not indicated, that his right ankle scar is productive of underlying soft tissue damage, or that his scar is unstable or painful. Thus, Diagnostic Codes 7800-7805 for scars are therefore not for application. 38 C.F.R. § 4.118. As such, the Board finds that the Veteran's service-connected right total ankle replacement is entitled to a disability evaluation of 40 percent, but no higher, for the rating period prior to September 26, 2017. 38 C.F.R. § 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to an increased disability evaluation for partial tear, anterior cruciate ligament, right knee, post-operative, with scars and instability, currently rated as 20 percent disabling, is remanded. 2. Entitlement to an increased disability evaluation for right knee, status-post surgery, partial tear, anterior cruciate ligament, with limitation of motion, currently rated as 10 percent disabling, is remanded. 3. Entitlement to an increased disability evaluation for status-post right total ankle replacement, for the rating period since September 26, 2017, is remanded. The Veteran asserts that his service-connected right knee instability and right knee limitation of motion, as well as his residuals of a right total ankle replacement, are more severe than presently evaluated. The Board observes that Veteran was most recently afforded VA examinations for these disabilities in September 2017. However, the Veteran and his representative continue to assert that his symptoms have continued to worsen since those examinations. In particular, the Veteran alleges multiple secondary right leg disabilities as a result of his service-connected right ankle and knee disabilities. The Board notes that the Veteran is service-connected for peripheral neuropathy of the right lower extremity on a secondary basis; however, it is unclear whether the Veteran's complaints represent a worsening of symptomatology related to his service-connected disabilities or additional secondary disabilities. VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, the Veteran must be provided with VA examinations which consider the current severity and manifestations of his service-connected disabilities, on appeal. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Board observes that additional relevant VA and private medical evidence was received and uploaded into the Veteran's claims file subsequent to the issuance of the November 2017 statement of the case. A review of the electronic claims folder reflects that neither the Veteran nor his representative waived consideration of evidence by the AOJ in the first instance. See 38 C.F.R. §§ 19.37(a), 20.1305(c). As a result, the Veteran's claims must be remanded so that the AOJ can consider all evidence pertaining to the Veteran's claims on appeal in the first instance. See 38 C.F.R. § 19.31(b) (the agency of original jurisdiction is to issue a supplemental statement of the case when additional pertinent evidence is received after a statement of the case has been issued). 4. Entitlement to TDIU is remanded. In a statement submitted with his January 2015 Notice of Disagreement, the Veteran appears to raise a claim of to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In this regard, the Veteran has repeatedly asserted that he is unable to obtain and maintain employment due to his service-connected disabilities. However, the Veteran has not yet submitted VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Moreover, it does not appear that the RO forwarded a VA Form 21-8940 to the Veteran or VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, to the Veteran's last employer; on remand, the RO should do so. Given that the Veteran's claims for increased disability ratings are being remanded for additional development, and that additional evidence speaking to the Veteran's employability may be obtained as part of those claims, the claim of entitlement to a TDIU is inextricably intertwined with the claim being remanded herein, and the claims should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records relevant to the claims remaining on appeal should be associated with the Veteran's claims file. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities, on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Send the Veteran a VA Form 21-8940 and request that he fill it out and return it to enable adjudication of his claim for TDIU. 3. The Veteran should be afforded a VA ankle examination to ascertain the current severity and manifestations of the service-connected total right ankle replacement. The claims file should be made available to the examiner for review in connection with the examination. The examination report should include a statement as to the effect of the service-connected total right ankle replacement on his occupational functioning and daily activities. Specifically, the examiner is advised to consider, along with the rating criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. The examination report should also delineate the symptoms and manifestations attributable to his service-connected right total ankle replacement and service-connected peripheral neuropathy of the right lower extremity. To the extent that there are any additional muscle injuries or foot disabilities present, the VA examiner should opine whether these disabilities are causally related to or aggravated by his service-connected disabilities. In particular, the VA examination must include range of motion testing for the right and left ankles in the following areas: Active motion; Passive motion; Weight-bearing; and Nonweight-bearing If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 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). 4. The RO should schedule the Veteran for a VA knee examination to ascertain the current severity and manifestations of the Veteran's service-connected partial tear, anterior cruciate ligament, right knee, post-operative, with scars and instability, and his service-connected right knee, status-post surgery, partial tear, anterior cruciate ligament, with limitation of motion. The claims file should be made available to the examiner for review in connection with the examination. The examination reports should include a statement as to the effect of the service-connected right knee disabilities on his occupational functioning and daily activities. Specifically, the examiner is advised that it is necessary to consider, along with the schedular criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. The VA examiner must also specify the severity of any instability or subluxation, and whether there is evidence of removal or dislocation of the semilunar cartilage. In particular, the VA examination must include range of motion testing for the right and left knees in the following areas: Active motion; Passive motion; Weight-bearing; and Nonweight-bearing If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 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). The VA examiner should provide a complete rationale for any opinions provided. 5. After completing all indicated development, the AOJ should readjudicate the remaining claims on appeal, to include TDIU, in light of all of the evidence of record. The case should be returned to the Board after compliance with requisite appellate procedures. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.