Citation Nr: 21007616 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-27 677 DATE: February 10, 2021 ORDER An effective date earlier than February 26, 2016 for the grant of service connection for right ankle strain status post-surgery with old fracture right ankle (hereinafter “right ankle disability”) is denied. An initial rating in excess of 10 percent for right ankle disability prior to October 3, 2019 is denied. A rating of 20 percent, and no higher, for right ankle disability since October 3, 2019 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 24, 2017 is remanded. FINDINGS OF FACT 1. The Veteran’s initial formal claim of service connection for a right ankle disability was received on December 18, 1985. 2. Service connection for right ankle disorder was denied in a final July 1987 Board decision. 3. The Veteran’s formal petition to reopen the claim of service connection for a right ankle disability was received on February 26, 2016, and service connection was granted for this disability in a May 2016 VA rating decision. 4. The earliest date entitlement could have arisen for entitlement to service connection for right ankle disability was the date following separation from active service in December 1985 based on the onset of the disability during service. 5. From February 26, 2016 to October 2, 2019, the Veteran’s service-connected right ankle disability was not manifested by at least marked limited motion. 6. Since October 3, 2019, the Veteran’s service-connected right ankle disability has been manifested by marked limited motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than February 26, 2016 for the grant of service connection for right ankle disability have not been met. 38 U.S.C. §§ 5101, 5102, 5110, 7105(b), (d) (2012); 38 C.F.R. §§ 3.1(p), 3.105, 3.151(a), 3.155, 3.156, 3.304(f)(3), 3.400(q), (r), 20.204, 20.302, 20.1103 (2019). 2. The criteria for entitlement to an initial rating in excess of 10 percent for right ankle disability prior to October 3, 2019 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5271 (2019). 3. The criteria for entitlement to a rating of 20 percent, and no higher, for right ankle disability beginning October 3, 2019 have been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1985 to December 1985. 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). 1. Entitlement to an effective date earlier than February 26, 2016 for the grant of service connection for right ankle disability The Veteran contends that he is entitled to an effective date earlier than February 26, 2016 for the grant of service connection for right ankle disability. At the outset, the Board notes that the Veteran filed a timely notice of disagreement (NOD) with the May 2016 VA rating decision that granted service connection for right ankle disability and established the effective date for the assignment of 10 percent disability rating, and he perfected this appeal. Thus, the Board has proper jurisdiction over this claim on appeal for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (there is no such thing as a freestanding claim for an earlier effective date). The effective date based on the submission of new and material evidence received after a final disallowance, as in this case, is the date of the receipt of the new claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), (r). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 U.S.C. § 5101(a)(1); 38 C.F.R. § 3.151(a). Prior to March 24, 2015, a “claim” was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA could have been considered an informal claim. 38 C.F.R. § 3.155(a). The essential elements for any claim, whether formal or informal, were: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). On December 18, 1985, VA received the Veteran’s completed VA Form 21-526 requesting service connection for a right ankle disability. In a July 1987 Board decision, the issue of service connection for right ankle disorder was denied on the merits. The Veteran was notified of this action and of his appellate rights but did not file an appeal for the July 1987 Board decision; therefore, the July 1987 Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. §§ 19.52, 20.1100. On February 26, 2016, VA received the Veteran’s completed VA Form 21-526 requesting to reopen the issue of service connection for a right ankle disability, and this claim was reopened and granted on the merits (as incurred in service based on a May 2016 VA medical opinion) in a May 2016 VA rating decision. The Agency of Original Jurisdiction (AOJ) assigned an effective date of February 26, 2016 for the grant of service connection for right ankle disability. In light of the final July 1987 VA rating decision and absence of any statements by the Veteran or relevant evidence thereafter, the Board finds that the Veteran’s formal claim to reopen the issue of service connection for right ankle disability on February 26, 2016 is the date of receipt of claim. The Veteran has not asserted that he filed a formal or informal claim between the July 1987 Board decision and his February 26, 2016 petition to reopen his previously denied claim. Next, a review of the record indicates that the date of the positive etiology opinion rendered by the VA examiner in May 2016 may be considered as the date entitlement arose for right ankle disability. The AOJ assigned the date of claim as the effective date, which is more favorable to the Veteran. On the other hand, a review of the record indicates that at the earliest, the date following separation from active service in December 1985 may be considered as the date entitlement arose for right ankle disability based on the positive etiology opinion rendered by the VA examiner in May 2016. Since the date of receipt for the claim is February 26, 2016, which is later than the earliest date that can be construed as the date entitlement arose in December 1985, the Board finds the currently assigned effective date of February 26, 2016 is properly assigned for the grant of reopened claim for service connection for right ankle disability. As a result, whether the date entitlement arose was in May 2016 or in December 1985, the issue on appeal for an effective date earlier than February 26, 2016 is not warranted. Furthermore, the Board notes that the proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received, and only a request for revision premised on clear and unmistakable error (CUE) could result in the assignment of an earlier effective date. See 38 U.S.C. § 5110(a); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (“[A]bsent a showing of [clear and unmistakable error, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.”). A prior final Board decision must be reversed or revised where evidence establishes CUE. See 38 U.S.C. § 5109A(a) (2012); 38 C.F.R. § 3.105(a) (2019). There is a three-pronged test to determine whether CUE was present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be undebatable such that had it not been made, would have manifestly changed the outcome at the time that it was made; and (3) a determination that there was CUE must be made based on the record and law that existed at the time of the prior adjudication in question. Bouton v. Peake, 23 Vet. App. 70 (2008); see also Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); Damrel v. Brown, 6 Vet. App. 242, 245 (1994). In the July 2016 VA Form 21-0958 (NOD), the Veteran reported that “VA made a CUE in denying [the] original claim and would like the date of claim for this service[-]connected disability effective [December 18, 1985].” Most recently at the October 2019 Board hearing, the Veteran further raised the concern that the December 1985 medical board report was not of record at the time of the final Board decision in July 1987. On the other hand, review of the evidentiary record documents VA’s receipt of the Veteran’s complete service treatment records in May 1986 which included the December 1985 medical board report. The June 1986 VA rating decision and July 1987 Board decision both include discussion of the Veteran’s service treatment records. In fact, the July 1987 Board decision specifically cites consideration and discusses the December 1985 medical board report. The Board acknowledges the Veteran’s and his representative’s assertions, as noted above, regarding the December 1985 medical board report and the July 1987 Board decision. However, neither has indicated, with some degree of specificity, that there was CUE in the July 1987 final Board decision. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). They did not assert that the correct facts as they were known at the time, were not before the adjudicator and did not argue that the law that existed at the time was not correctly applied. A specific allegation of CUE must assert more than merely disagreement with how the facts of the case were weighed or evaluated. Regarding the challenge to the VA examination, a breach of the duty to assist cannot form a basis for a claim of CUE. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000). Persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. As a result, a claim for CUE with the final July 1987 Board decision has not been properly raised, so will not be discussed by the Board at this time. See 38 C.F.R. § 3.105(a); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). 2. Entitlement to an initial rating in excess of 10 percent for right ankle disability Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in February 2016. Fenderson v. West, 12 Vet. App. 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The Veteran filed his initial claim requesting service connection for a right shoulder disorder on April 8, 2006. In the July 2006 VA rating decision, service connection for degenerative arthritis of the right shoulder was granted because the disability was deemed to be directly related to his military service, to include a motor vehicle accident. As noted above, in the May 2016 VA rating decision, service connection for right ankle disability was granted and assigned at 10 percent disabling for limitation of motion for the entire appeal period effective from February 26, 2016. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board considers whether an initial rating in excess of 10 percent for right ankle disability is warranted at any time since the date of claim on February 26, 2016. Diagnostic Code 5271 provides the following rating criteria for limitation of motion of the ankle: a 10 percent rating for moderate limited motion and 20 percent, the maximum available, for marked limited motion. 38 C.F.R. § 4.71a. For VA compensation purposes, normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The rating schedule does not define the terms “moderate” or “marked,” as used in Diagnostic Code 5271 to describe the degree of deformity of the ankle. Instead, adjudicators must evaluate all of the evidence and render a decision that is “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 background 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.”). Review of the evidentiary record since February 26, 2016 documents the following musculoskeletal symptomatology of the right ankle disability. At the May 2016 VA Disability Benefits Questionnaire (DBQ) examination for ankle conditions, the Veteran reported the onset of symptoms (sharp pain radiating to toes and limited range of motion) during active service and that the condition has gotten worse. He specified having flare ups of the right ankle described as pain and stiffness when he walks or sits down, severe pain when moving, limited on mobility, and decreased walking. Upon clinical evaluation, he demonstrated active dorsiflexion to 10 degrees with pain and active plantar flexion to 20 degrees with pain. While there was a finding of less movement than normal of the right ankle and reported occasional use of an ankle brace, there were no findings of additional limitation in range of motion following repetitive-use testing, repeated use over time, or during flare ups, nor instability or ankylosis. The examiner stated that during a flare-up, his range of motion would not change. His strength was normal at 5/5 for both plantar and dorsiflexion. The examiner also found that the right ankle condition did not result in functional impairment such that no effective function remained than that which would be equally well served by amputation and a prosthesis. The Veteran submitted a private DBQ examination report for ankle conditions conducted on October 3, 2019. The Veteran reported right ankle pain and stiffness causes difficulty standing and walking. Upon clinical evaluation, he demonstrated active dorsiflexion to -15 degrees with pain and active plantar flexion to 55 degrees with pain. The Veteran also demonstrated dorsiflexion to -25 degrees and plantar flexion to 50 degrees following repetitive-use testing. There were also findings of functional loss due to less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, disturbance of locomotion, and interference with standing, which the private examiner estimated as dorsiflexion to 10 degrees and plantar flexion to 5 degrees, as well as positive anterior drawer test results with a finding of collateral lateral ligament sprain. The private examiner further noted there was no clinical finding of ankylosis. The examiner also found that the right ankle condition did not result in functional impairment such that no effective function remained than that which would be equally well served by amputation and a prosthesis. Most recently, at the October 2019 Board hearing, the Veteran reported he cannot do several things he did in the past, stand for any length of time, walk any distance, or lift things. The Veteran’s representative further noted the Veteran informed him he cannot walk but 25 to 30 to 50 feet, he has to lean against something before getting put off the ground because of ankle swelling and pain, getting angry because he cannot go out and do things such as fishing or with people, as well as unable to walk across the street, to the grocery store, or around the house without aid of a cane, stick, or brace. After a review of the evidence discussed above, the Board finds that the service-connected right ankle disability more closely approximates marked limitation of motion thus a 20 percent rating is warranted during the appeal period since October 3, 2019. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The symptomatology includes decreased range of motion (dorsiflexion at worst to -25 degrees and plantar flexion at worst to 5 degrees), pain, stiffness, difficulty standing and walking, and use of a brace and cane. With regard to the appeal period prior to October 3, 2019, the Board finds that the functional equivalent of marked limitation or ankylosis is not shown at any time, even when considering the Veteran’s reported symptomatology for the service-connected right ankle disability including painful motion, stiffness, limited mobility, and decreased walking as reported at the May 2016 VA examination. In fact, he demonstrated active limited range of motion of dorsiflexion at worst to 10 degrees and plantar flexion to 20 degrees, both with pain, and without any additional limitations following repetitive-use testing, repeated use over time, or during flare ups nor clinical findings of instability. The Veteran’s reported symptomatology did not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant an initial rating higher than 10 percent during the appeal prior to October 3, 2019 under 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings in DeLuca and Mitchell. As such, the Board finds that an initial rating in excess of 10 percent from February 26, 2016 to October 2, 2019 for the service-connected right ankle disability is not warranted in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. During the appeal period since October 3, 2019, to meet the next-higher 30 or 40 percent criteria, the maximum available, ankylosis of the right ankle is needed. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Review of the medical and lay evidence of record is silent for such a finding. Although the Veteran has marked limitation of motion, the medical evidence and his hearing testimony show that he retains mobility in the ankle. Therefore, ankylosis is not present. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). As a result, the Board finds that a rating in excess of 20 percent since October 3, 2019 for service-connected right ankle disability is not warranted in this case. Id. Moreover, given that the Veteran is already in receipt of the schedular maximum for limitation of motion of the ankle since October 3, 2019, inquiry into the DeLuca factors is moot. See DeLuca, 8 Vet. App. at 206; Johnston v. Brown, 10 Vet. App. 80, 87 (1997). The Board considered the Veteran’s reported history of symptomatology related to the service-connected right ankle disability. The Veteran is competent to report symptoms and observations, such as pain, because this requires only personal knowledge as it comes through ones 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 a higher initial rating for his right ankle disability have been met. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, competent evidence concerning the nature and extent of the Veteran’s disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran’s subjective reported worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board also considered the possibility of staged ratings and finds that the scheduler ratings for the service-connected right ankle disability have been in effect for appropriate periods on appeal. Accordingly, additional staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. Lastly, the Board notes that during the entire appeal period since February 26, 2016, the Veteran has been separately compensated for a scar on the right ankle and consideration of a higher rating for that scar disability is not currently on appeal. Moreover, the issue of service connection for major depressive disorder was granted as secondary to service-connected bilateral plantar fasciitis in a September 2017 VA rating decision. REASONS FOR REMAND Entitlement to a TDIU prior to April 24, 2017 In October 2017, the Veteran requested service connection for TDIU. In an October 2017 VA Form 21-4192, his former employer noted the Veteran’s service-connected disabilities forced his termination. The Veteran also noted in an October 2017 VA Form 21-8940 that “due to the severity of [his] service[-]connected disabilities, [he] could no longer perform the duties required to keep working.” Moreover, the May 2016 VA DBQ examination report for ankle conditions documents the examiner marked “yes” for the service-connected right ankle condition impacting the Veteran’s ability to perform any type of occupational task and noted “decreased [range of motion and] difficulty walking for prolonged periods of time.” In a November 2017 VA rating decision, the issue of TDIU was granted, effective from April 24, 2017. Nevertheless, the Board finds that the issue of entitlement to a TDIU was raised in connection with the claim on appeal for a higher initial rating for service-connected right ankle disability during the appeal period from February 26, 2016 to April 23, 2017. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The matter is REMANDED for the following actions: Readjudicate the claim for TDIU prior to April 24, 2017, to include whether extra-schedular consideration is warranted consistent with 38 C.F.R. § 4.16(b) at any time from February 26, 2016 to April 23, 2017. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames 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.