Citation Nr: 21009041 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-25 475A DATE: February 18, 2021 ORDER Service connection for left lower extremity sciatica, to include as secondary to a lumbar spine disability, is denied. An initial rating of 20 percent, but no higher, for the service-connected right ankle degenerative arthritis is granted. An initial rating of 20 percent, but no higher, for the service-connected status post left ankle fracture with residual pain and impaired mobility is granted. REMANDED Entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected bilateral ankle disabilities, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to the service-connected bilateral ankle disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has not had a current diagnosis of left lower extremity sciatica at any time during the appeal period. 2. Affording the Veteran the benefit of the doubt, his service-connected bilateral ankle disabilities result in marked limitation of motion; but the evidence does not show he experiences any type of ankle ankylosis, malunion of os calcis or astragalus, or that he has had an astragalectomy. CONCLUSIONS OF LAW 1. The criteria for service connection for left lower extremity sciatica are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial rating of 20 percent, but no higher, for the service-connected right ankle degenerative arthritis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5270-5274. 3. The criteria for an initial rating of 20 percent, but no higher, for the service-connected status post left ankle fracture with residual pain and impaired mobility are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5270-5274. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1966 to October 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2012, March 2015, and January 2016 rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran initially requested a Board hearing in his June 2018 formal appeal to the Board on the issues of entitlement to service connection for a left knee disability; an increased rating for the service-connected right ankle disability; and a TDIU. However, his representative submitted a letter in August 2020 withdrawing the hearing request. The issues of entitlement to service connection for a lumbar spine disability; service connection for left lower extremity sciatica; and a rating in excess of 10 percent for the service-connected left ankle disability were previously before the Board in February 2019. At that time, the Board remanded those claims for further development. Service Connection – Left Lower Extremity Sciatica Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran seeks service connection for sciatica of his left leg. However, there is no evidence that he has had left leg sciatica at any time during the appeal period. VA treatment records associated with the claims file spanning the period on appeal consistently state “no findings of sciatica,” and an April 2019 VA back conditions examiner found no evidence of sensory conditions in the Veteran. Although a VA treatment record dated February 2011, prior to the period on appeal, noted that the Veteran’s reported left leg achiness was “probably sciatica,” there is no evidence of such a diagnosis for sciatica ever having been rendered, especially not at any time during the period on appeal. To warrant service connection, the threshold requirement is competent evidence of the existence of the claimed disability at some point during a veteran’s appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Board recognizes the Veteran’s sincere belief in his left lower extremity sciatica, the most competent evidence of record does not show that he has a diagnosis of such a disability at any time during this appeal. In light of the probative evidence of record, the record does not support the claim for service connection for left lower extremity sciatica. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, because the preponderance of the evidence is against the claim, the claim must be denied. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. 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 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). An initial rating in excess of 10 percent for the service-connected right ankle degenerative arthritis An initial rating in excess of 10 percent for the service-connected status post left ankle fracture with residual pain and impaired mobility Throughout the course of the appeal period (March 7, 2012 to present), the Veteran’s left ankle symptoms have been rated as 10 percent disabling under DCs 5003-5271. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. DC 5003 provides that arthritis is generally rated based on limitation of motion of the joint. See 38 C.F.R. § 4.71a, DC 5003. The November 2012 rating decision pursuant to which this rating was initially assigned clarified that the Veteran did not display compensable limitation of motion of the left ankle, and the 10 percent rating under DCs 5003-5271 was assigned for painful limited motion, which falls under 30 C.F.R. § 4.59. This regulation allows the minimum compensable rating for a particular joint to be assigned (10 percent for an ankle) when painful motion of the joint is shown. 38 C.F.R. § 4.59. In addition, throughout the course of the appeal period (September 23, 2014 to present), the Veteran’s right ankle symptoms have also been rated as 10 percent disabling under DCs 5003-5271. The March 2015 rating decision pursuant to which this rating was initially assigned also clarified that the Veteran did not display compensable limitation of motion of the right ankle, and the 10 percent rating under DCs 5003-5271 was assigned for painful limited motion under 30 C.F.R. § 4.59. Limited motion of the ankle is rated under DC 5271. According to this Diagnostic Code, marked limitation of motion of the ankle warrants a 20 percent rating and moderate limitation of motion of the ankle warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5271. [Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II.] Other diagnostic codes providing ratings for ankle disabilities include: DC 5270 for ankylosis of the ankle; DC 5272 for ankylosis of the subastragalar or tarsal joint; DC 5273 for malunion of os calcis or astragalus; and DC 5274 for astragalectomy. As detailed below, the Veteran’s right and left ankles have not been shown to have these conditions during the period on appeal. The Veteran was afforded a VA ankle conditions examination in October 2012 for the severity and etiology of his left ankle. At that time, he reported experiencing chronic left ankle pain which was aggravated by prolonged walking, running, and cold weather, but the examiner stated that the Veteran did not report experiencing flare-ups impacting the function of his left ankle. The Board acknowledges that such a finding is contradicted by the Veteran’s reports of flare-ups after prolonged walking, running, and cold weather. The left ankle examination revealed 15 degrees of dorsiflexion, where painful motion began; and 35 degrees of plantar flexion, where painful motion began. The Veteran was able to perform repetitive-use testing, with no change in his left ankle ranges of motion after repetitive-use testing. The examiner found that the Veteran had functional loss and/or functional impairment of the left ankle due to pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight-bearing. The Veteran did not have ankylosis of the left ankle, subtalar and/or tarsal joint. He was also noted as not having or ever having had malunion of the os calcis or astragalus, or having had an astragalectomy. The examiner concluded that the Veteran’s left ankle condition did not impact his ability to work. The Veteran submitted a written statement in December 2014 wherein he stated that his ankles were getting worse. He had been outfitted with ankle supports by VA. The pain was increasing, and it was taking longer to get his ankles to loosen up in the mornings. The Veteran underwent another VA ankle conditions examination in February 2015 which assessed the severity of his bilateral ankle disabilities. At that time, he reported experiencing bilateral ankle pain which was worse in the right ankle and progressing. He reported experiencing flare-ups, which he described as occurring in the morning with cracking and a feeling of something floating in the ankle. The pain would increase, and he would have to do ankle exercises with toe raises to get the ankles working. He also reported having functional loss or impairment of his ankles in that he was unable to walk on them in the morning until he did his exercises. On examination, range of motion testing revealed left ankle dorsiflexion to 15 degrees and plantar flexion to 45 degrees; and right ankle dorsiflexion to 10 degrees and plantar flexion to 35 degrees. The examiner noted that there was pain on examination in all movements which did not result in or cause functional loss. There was evidence of pain with weight bearing bilaterally. The left ankle did not have pain on palpation or localized tenderness, but the right ankle had mild tenderness on palpation to the lateral area of the malleolus process. The Veteran was able to perform repetitive use testing with at least three repetitions for both ankles, but there was no additional resulting loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time or during a flare-up, and the examiner noted that the examination neither supported nor contradicted the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. However, the examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time or during flare-ups because the Veteran was not examined under such conditions. The Veteran stated he experienced moderate flare-ups daily which would last all day long. The Veteran did not have ankylosis of either ankle, subtalar and/or tarsal joint—did he ever have malunion of the os calcis, astragalus, or an astragalectomy as to either ankle. The examiner concluded that the Veteran’s bilateral ankle condition did not impact his ability to work. The Veteran submitted another written statement in August 2015 in support of these claims. Therein, he stated that the pain in both of his ankles was at a level ten out of ten. In April 2019, the Veteran underwent another VA ankle conditions examination to assess the severity of his bilateral ankle disabilities. At that time, the Veteran reported that his ankles were always hurting, whether he was in bed, sitting, standing, or walking. He could tolerate standing for only 15 to 20 minutes, and his daily ankle pain was a level ten out of ten. He reported experiencing flare-ups and functional loss of the bilateral ankles, such that when going up stairs, stepping up a curb, or standing for 15 minutes, his pain would be a level eight out of ten. On examination, range of motion testing revealed bilateral ankle dorsiflexion to 15 degrees and plantar flexion to 40 degrees. The examiner noted that there was pain on examination in all movements which did not result in or cause functional loss. There was evidence of pain with weight bearing bilaterally. The bilateral ankles had tenderness on palpation to the lateral area of the malleolus process and the calcaneus. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions for both ankles, and there was additional loss of function or range of motion on dorsiflexion bilaterally, such that it was limited to 10 degrees. The Veteran was not examined immediately after repetitive use over time or during a flare-up, and the examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during flare-ups. Fatigue and lack of endurance further limited functional ability in the bilateral ankles with repeated use over time, and pain and lack of endurance further limited functional ability during flare-ups. With repetitive use over time or during flare-ups, the Veteran’s bilateral ankle dorsiflexion would be decreased to even less than 10 degrees and plantar flexion decreased to even less than 40 degrees bilaterally. The Veteran did not have ankylosis of either ankle, subtalar and/or tarsal joint. He was also noted as not having or ever having had malunion of the os calcis or astragalus, or having had an astragalectomy as to both ankles. The Veteran was noted as regularly using an ankle brace to assist with locomotion. The Veteran’s medical records spanning the periods on appeal have been reviewed. However, they did not contain evidence of more severe ankle symptoms than shown on contemporaneous VA examinations. In light of the above, considering functional loss due to pain and other factors, particularly during flare-ups or with repeated use over time, and affording the Veteran the benefit of the doubt, the Board finds that his ankle disabilities have resulted in marked limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. None of the VA ankle conditions examinations gave precise measurements of additional functional loss in terms of range of motion with repeated use over time or during flare-ups. However, the April 2019 VA examiner did state that range of motion would be decreased even further than 10 degrees dorsiflexion during these events. This approximation leaves the evidence in relative equipoise as to how much further than 10 degrees dorsiflexion would be limited. Given that dorsiflexion is just as likely to be markedly limited as moderately limited during flare-ups or with repeated use over time, the benefit of the doubt is given to the Veteran. Therefore, the Board finds that his bilateral ankle disabilities have been productive of marked limitation of motion, warranting 20 percent ratings under DC 5271. There is no higher schedular disability rating available for limited motion of the ankle. As such, a rating above 20 percent for limited motion is not possible, as the Veteran is afforded the highest schedular rating under DC 5271 for both his left and right ankle disabilities. The Board has also considered whether a higher rating could be warranted under any other diagnostic code pertaining to ankle disabilities, but no other diagnostic code is applicable for this Veteran. Those diagnostic codes include: DC 5270 for ankylosis of the ankle; DC 5272 for ankylosis of the subastragalar or tarsal joint; DC 5273 for malunion of os calcis or astragalus; and DC 5274 for astragalectomy. In conclusion, a 20 percent rating, but no higher, is warranted for each of the Veteran’s right and left service-connected ankle disabilities, and there is no applicable DC under which a rating in excess of 20 percent could be granted. REASONS FOR REMAND Entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected bilateral ankle disabilities The Veteran seeks service connection for a lumbar spine disability. Specifically, he asserts that he injured his low back in service and that he has injured his low back after falling due to his ankles “giving out.” He was afforded a VA back conditions examination in April 2019, at which time he disclosed being treated by two private providers for his lumbar spine. Medical records from these private providers have not been associated with the claims file. A remand is needed for VA to obtain these records as they may contain information which could support the Veteran’s claim. In addition, the April 2019 VA examiner opined against both direct and secondary service connection for the Veteran’s lumbar spine disability. Both opinions noted a lack of medical evidence supporting the service connection theories. As the Veteran’s private records were not available for review at the time of that VA examination, a new examination is needed after the Veteran’s private records have been obtained to determine the etiology of his lumbar spine disability. Entitlement to service connection for a left knee disability, to include as secondary to the service-connected bilateral ankle disabilities The Veteran seeks service connection for a left knee disability, which he asserts was caused by his service-connected bilateral ankle condition. In February 2015, he was afforded a VA knee and lower leg conditions examination to address the etiology of his left knee disability. The VA examiner only opined as to whether the Veteran’s left knee arthritis was related to his ankle disabilities. Specifically, the examiner determined that the Veteran’s left knee arthritis was not related to his ankle disabilities because his left knee arthritis was a progressive condition that develops over time and was not an acute issue. Significantly, however, this VA examination did not adequately address all diagnosed left knee conditions the Veteran has had during the appeal period, but, rather, focused solely on his arthritis. Further, the examiner did not consider whether the Veteran’s bilateral ankle disabilities have resulted in an altered gait, which has been noted in his VA treatment records, and whether this symptomatology could have caused or aggravated his left knee condition. The examiner also did not consider the Veteran’s contention that he tore his left knee meniscus in October 2014 while performing physical therapy for his service-connected ankle disabilities. A new VA examination is needed which considers the etiology of all disabilities of the Veteran’s left knee, and all pathways by which it could be related to his ankle disabilities. Entitlement to a TDIU The Veteran’s claim for a TDIU is inextricably intertwined with the other claims being remanded herein. Therefore, the Board finds that the claim for a TDIU must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, these matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his lumbar spine and/or left knee disability, to include specifically the providers at Boca Raton Hospital and Kantor Spine Clinic which he disclosed as having treated his back condition to the April 2019 VA back conditions examiner. Make two requests for all authorized records from each provider, unless it is clear after the first request that a second request would be futile. 2. After all outstanding medical records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any lumbar spine disability he may have. The examiner should have an opportunity to review the claims folder in conjunction with this examination. The examiner is asked to identify every lumbar spine condition with which the Veteran has been diagnosed at any time during the appeal period (from March 2012 to present), including, but not limited to, arthritis, and degenerative disc disease as noted in the April 2019 VA back conditions examination report, and respond to the following questions for each such diagnosed condition: a. Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed lumbar spine disability onset in, or is otherwise related to, the Veteran’s active service? b. Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed lumbar spine disability was caused by one or both service-connected ankle disabilities, to include as a result of a fall or an altered gait due to either/both of the bilateral ankle disabilities? c. Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed lumbar spine disability was aggravated (i.e., made worse) by one or both of the Veteran’s service-connected ankle disabilities, to include as a result of a fall or an altered gait due to either/both of the bilateral ankle disabilities? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or is the result of an exhaustion of the limits of current medical knowledge in providing an answer to that particular question. 3. Also, after all outstanding medical records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any left knee disability he may have. The examiner should have the opportunity to review the claims folder in conjunction with this examination. The examiner is asked to identify every left knee condition with which the Veteran has been diagnosed at any time during the appeal period (from October 2014 to present), including, but not limited to, arthritis, a meniscus tear, and chondromalacia per the October 2014 left knee MRI, and respond to the following questions for each such diagnosed condition: a. Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed left knee disability onset in, or is otherwise related to, the Veteran’s active service? b. Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed left knee disability was caused by one or both service-connected ankle disabilities, to include as due to an injury incurred while performing physical therapy for an ankle disability, or a result of a fall or an altered gait due to either/both of the bilateral ankle disabilities? c. Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed left knee disability was aggravated (i.e., made worse) by one or both of the Veteran’s service-connected ankle disabilities, to include as due to an injury incurred while performing physical therapy for an ankle disability, or a result of a fall or an altered gait due to either/both of the bilateral ankle disabilities? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or is the result of an exhaustion of the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, Associate 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.