Citation Nr: 21005397 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-21 211 DATE: February 1, 2021 ORDER Entitlement to a rating higher than 10 percent for a left ankle disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a left leg disability is denied. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and an anxiety disorder, is remanded. FINDINGS OF FACT 1. The Veteran’s left ankle sprain is manifested by no more than moderate limited motion of the ankle. 2. The preponderance of the evidence of record is against finding that the Veteran has had a right ankle disability at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran has had a left leg disability at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a left leg disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to August 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified at a Travel Board hearing before the undersigned. In July 2019, the Board decided the appeal in part and remanded it in part. 1. Entitlement to a rating higher than 10 percent for a left ankle disability The Veteran contends that he is entitled to a higher rating for his left ankle disability. The Veteran’s left ankle sprain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board observes that the words “moderate” and “marked” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left ankle sprain. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, repetitive use, and during flare-ups. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the medical record, including the September 2020 and December 2020 VA examinations, would not result in symptoms more nearly approximating marked limited motion or limitation so distinctive or emphasized that it would approximate marked limited motion. In this regard, the Board notes that the Veteran’s initial range of motion testing on the September 2020 VA examination was dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 40 degrees, with pain on plantar flexion causing some functional loss. There was also objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner noted that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time and with flare-ups. The examiner reported repeated use and flare-ups resulted in range of motion measurements of dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 30 degrees. On December 2020 VA examination, the Veteran’s initial range of motion testing was marked as normal, but the results were the same as on the prior examination. The examiner indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time and with flare-ups. The examiner noted repeated use and flare-ups resulted in range of motion measurements of dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 40 degrees. The Board makes a finding of fact that these symptoms more nearly approximate moderate limited motion of the ankle rather than marked limited motion. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. 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. The Board has considered whether a remand is warranted to obtain additional examinations based on the responses in the VA examinations regarding functional impairment and the Veteran’s contentions regarding the appropriateness of a higher rating under DeLuca v. Brown, 8 Vet. App. 202 (1995). After this review, the Board finds that the responses in these examinations and the Veteran’s reports of where and when there is pain are adequate upon which to determine functional impairment and further remand would not serve a useful purpose. The Veteran has described the pain and limitations that the disability causes. The current 10 percent rating is recognition that the disability, to include pain, causes some limitation of motion. The evidence, however, weighs against a finding of greater impairment. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for left ankle sprain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Service Connection 2. Entitlement to service connection for a right ankle disability 3. Entitlement to service connection for a left leg disability Issues 2-3: The Veteran contends he has left ankle and left leg disabilities related to service. Alternatively, he contends that they are secondary to his service-connected left ankle disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disability will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disability. 38 C.F.R. § 3.310. In cases of aggravation of a Veteran’s non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have current diagnoses of right ankle and left leg disabilities and has not had them at any time during the pendency of the claims or recent to the filing of the claims. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In making this determination, the Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. The September 2020 and December 2020 VA examiners evaluated the Veteran and determined that he did not have diagnoses of right ankle and left leg disabilities. Further, despite consistent treatment for many years, VA treatment records do not contain any such diagnoses. The Board finds that the Veteran did not have a right ankle or left leg disability at any time relevant to the appeal period, to include when considering whether there was a disability manifested by functional loss. While the Veteran believes he has current diagnoses of right ankle and left leg disabilities, he is not competent to provide diagnoses in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The claims are denied. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability is remanded. 2. Entitlement to service connection for a back disability is remanded. Issues 1-2: The Board cannot make fully-informed decisions on these issues because the September 2020 VA examiner stated the Veteran did not have hip or back complaints or injuries during service, but did not comment on the Veteran’s motorcycle accident during service. 3. Entitlement to service connection for a right hand disability is remanded 4. Entitlement to service connection for a left hand disability is remanded. Issues 3-4: The Board cannot make fully-informed decisions on these issues because the September 2020 VA examiner simply stated the conditions are hereditary and not due to service. Service connection may still be granted for a congenital defect unless it is a static congenital defect. See O’Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); see also 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306. In this regard, congenital or developmental defects are not considered “diseases or injuries” within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See O’Bryan, 771 F.3d at 1380; 38 C.F.R. §§ 3.303 (c), 4.9. Therefore, findings with a complete explanation must be made as to whether the Veteran’s right and left hand disabilities are static congenital defects, or whether they are progressive in nature, and as such capable of improvement or deterioration. See O’Bryan, 771 F.3d; VAOPGCPREC 67-90 (“A disease... even one which is hereditary in origin, is usually capable of improvement or deterioration”). On remand, an addendum opinion should be obtained. 5. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and an anxiety disorder is remanded. On June 2020 VA examination, the examiner opined that the Veteran had PTSD due to unverified in-service stressors. In light of this opinion, further remand is required to allow VA to attempt to corroborate the Veteran’s reported stressors. As well, the examiner noted the Veteran’s VA treatment records suggest he may also have a diagnosis of a generalized anxiety disorder. The examiner did not make any diagnoses other than PTSD, but should clarify all of the Veteran’s mental health diagnoses on remand. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2020 to the present. 2. Attempt to corroborate the Veteran’s in-service stressors, as discussed in his January 2019 statement. If more details are needed, contact the Veteran to request the information. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left hip disability is at least as likely as not related to service, to include his confirmed motorcycle accident, or whether it is proximately due to/aggravated beyond its natural progression by his service-connected left ankle disability. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s back disability is at least as likely as not related to service, to include his confirmed motorcycle accident, or whether it is proximately due to/aggravated beyond its natural progression by his service-connected left ankle disability. 5. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right and left hand disabilities are at least as likely as not related to service. The September 2020 VA examiner found the diagnoses were hereditary/congenital defects. As a result, the examiner is asked whether it is at least as likely as not that there are additional disabilities due to disease or injury superimposed upon such defects during service? If so, please identify the additional disabilities. 6. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has any other acquired psychiatric disorders other than PTSD that are at least as likely as not related to service. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dean, 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.