Citation Nr: 21010768 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 11-00 147A DATE: February 25, 2021 ORDER Entitlement to a disability rating higher than 10 percent for residuals of a right ankle fracture is denied. REMANDED Entitlement to an increased evaluation for bilateral pes planus, currently rated as 10 percent disabling before September 22, 2015 and as 30 percent disabling since then, is remanded. Entitlement to an evaluation in excess of 10 percent for a service-connected lower back disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) is remanded. FINDING OF FACT During the relevant appeal period, symptoms of the Veteran’s right ankle disability most closely approximated moderate limitation of motion; these symptoms did not include ankylosis or marked limitation of motion. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a residuals of an in-service right ankle fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.40, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to August 2000. This case comes to the Board from decisions of the Agency of Original Jurisdiction (AOJ) issued in February 2009 and June 2010. In December 2013, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. This case has a long procedural history. When the Board issued a decision and remand in March 2014, it included thirteen separate claims. The Board remanded the remaining issues in November 2017 and April 2010. At the time of the most recent remand, this appeal also included claims for service-connected compensation for radiculopathy of the lower extremities and for a left ankle disability. After completing some of the development requested by the Board, the AOJ granted both claims in September 2020. In the same decision, the AOJ increased the disability rating assigned for residuals of an in-service right ankle fracture from zero percent to 10 percent, effective December 15, 2009. Because the regulations potentially authorize higher ratings and the Veteran has not expressed satisfaction with the amount of this increase, the right ankle claim remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating for the Right Ankle Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board may consider whether separate ratings may be assigned for separate periods of time – a practice known as “staged ratings,” – whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under 38 C.F.R. § 4.40, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011), when evaluating the severity of certain disabilities, including disabilities of the spine, VA is generally required to consider whether the disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations in terms of additional degrees of range of motion loss. See Mitchell, 25 Vet. App. at 33. The Veteran’s 10 percent rating for his service-connected right ankle disability was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271 (“ankle, limited motion of”). As a result of the AOJ’s September 2020 decision, that rating currently applies to the entire relevant appeal period – from December 15, 2009 (the day the AOJ received his increased rating claim ) to the present. Diagnostic Code 5271 authorizes a 10 percent rating for moderate limited motion of the ankle, and a 20 percent rating for marked limited motion of the ankle. 38 C.F.R. § 4.71a. This diagnostic code does not provide for a rating in excess of 20 percent. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Although DC 5271 authorizes 10 and 20 percent disability ratings based on limited motion, when a service-connected musculoskeletal disability is actually painful, a description the Veteran has consistently applied to his right ankle, a minimum 10 percent rating is appropriate. See 38 C.F.R. §§ 4.59, 4.71a, DC 5003; Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991); Burton v. Shinseki, 25 Vet. App. 1 (2011). After receiving the Veteran’s claim, the AOJ arranged a VA joints examination in April 2010. The examiner’s report indicates that the Veteran had normal range of motion in his right ankle. The report describes the Veteran’s complaints of pain in his ankle and in many other joints. According to the examiner, there was normal muscle strength in the right ankle, but there was mild tenderness to palpation of the medial and lateral ankle. At the hearing, the Veteran was asked about his right ankle and discussed it together with his pes planus and back complaints. When discussing his orthopedic and joint complaints generally, he said that they had progressively gotten worse. He participated in another ankle examination in April 2016, but the examiner’s report indicates the examiner was “unable to test” range of motion in either ankle. The report does not explain why the Veteran did not perform range of motion tests. According to the examiner, there was normal muscle strength in the right ankle. There was no ankle ankylosis or muscle atrophy. The examiner indicated that the ankle disability did not affect the Veteran’s ability to perform any occupational task, writing “No functional limitations.” A VA physician performed a more thorough examination of the ankles in May 2019. The diagnosis section of this report indicated a healed right ankle fracture with “No obvious residuals – normal x rays are inconsistent with reported residual of osteoarthritis.” Initial range of motion test results for both ankles were normal – i.e., zero to 20 degrees dorsiflexion and zero to 45 degrees plantar flexion. The right ankle was capable of repetitive use and did not exhibit any limited range of motion after three repetitions. Muscle strength was normal and there was no muscle atrophy. As the Board explained in its most recent remand, however, the May 2019 report failed to strictly comply with 38 C.F.R. § 4.59, Correia v. McDonald, 28 Vet. App. 158, 170 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Specifically, it was unclear whether range of motion test results were different in active or passive motion or in weightbearing and non-weightbearing. The examiner also declined to estimate the extent of range of motion after repeated use over time or during flare-ups. The most recent ankles examination took place in August 2020. According to the examination report, initial range of motion test results were normal. But the ankle exhibited pain during both dorsiflexion and plantar flexion. There was no evidence of pain with weightbearing and no objective evidence of localized tenderness or pain to palpation of the joint or associated soft tissue. Left ankle results were similar. The Veteran was able to perform repetitive use testing and range of motion remained normal after three repetitions. In response to the request for information about the testing methods listed in 38 C.F.R. § 4.59, the examiner also tested the right ankle in passive motion and in non-weightbearing. There was no pain and apparently no change in range of motion during these tests. Muscle strength remained normal in both ankles. And there was no muscle atrophy. The Veteran did describe flare-ups of right ankle pain to the August 2020 examiner. He explained that, during flare-ups, his ankle becomes more stiff than normal and his pain increases to a self-reported severity of 7 on a scale of 0 to 10. When he is not experiencing a flare-up, he estimated his pain at 5/10. The Veteran said he experiences flare-ups two or three times a month and they last for approximately one week. Based on the examination and interview with the Veteran, the examiner estimated that range of motion after repeated use over time would be normal. The examiner also estimated that, during flare-ups, dorsiflexion was reduced to 10 degrees and plantar flexion to 35 degrees. An additional factor contributing to disability was interference with standing. The examiner explained that standing for more than 30 minutes causes increased pain in the Veteran’s ankles and feet. Describing the functional impact of the disability, the examiner wrote that the Veteran’s bilateral ankle conditions prevented him from walking more than one quarter of a mile or for more than 30 or 40 minutes. It also prevented him from lifting or carrying objects weighing more than 25 pounds. The service-connected right ankle fracture, according to the examiner, did not prevent the Veteran from performing any of his occupational tasks as a finance technician. As a preliminary matter, the Board finds that, with respect to the claim for an increased rating for his service-connected healed right ankle fracture, the August 2020 examination report is adequate and substantially complies with its prior remand orders. The examiner substantially compiled with Correia by indicating whether or not pain was present during each of the testing methods required by 38 C.F.R. § 4.59 and by indicating that range of motion remained normal throughout these tests. She complied with Mitchell and Sharp by providing clear estimates about the extent of range of motion after repeated use over time and during flare-ups. Proceeding to the merits of the claim, it is significant that all of the available range of motion test results for the right ankle indicated normal range of motion. The most limited range of motion during the appeal period was the August 2020 examiner’s estimate of limited motion during flare-ups. But even that estimate, based on the Veteran’s descriptions of his right ankle movement when his symptoms are at their worst, do not show marked limited motion of the right ankle. In summary, the evidence indicates that the symptoms of his service-connected disability cause moderate limited motion during flare-ups and, at other times, painful motion without loss of range of motion. During flare-ups these symptoms indicate a 10 percent rating is appropriate under DC 5271. At other times, because the evidence suggests that the right ankle remained actually painful, the 10 percent minimum compensable rating is appropriate. See 38 C.F.R. §§ 4.59; Lichtenfels, 1 Vet. App. 484. The AOJ has already assigned a 10 percent rating for the entire appeal period (December 15, 2009 to the present) which appropriately compensates the Veteran for the disabling effects of these symptoms. Because the preponderance of the evidence reflects that the symptoms of the Veteran’s right ankle disability do not approximate the criteria for a rating higher than 10 percent, the benefit of the doubt doctrine does not apply and the claim for an increased rating for a right ankle disability must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. REASONS FOR REMAND Increased Rating for Pes Planus To support his claim for an increased rating for pes planus, the Veteran submitted a foot conditions disability benefits questionnaire, apparently completed by a chiropractor in February 2017. This questionnaire described symptoms which, if accurate, would satisfy the criteria for a higher 50 percent rating under 38 C.F.R. § 4.71a, DC 5276. The next scheduled VA foot conditions examination report, dated May 2019, indicates that many of the symptoms described by the chiropractor were not present. The May 2019 report also indicated that additional diagnoses (hallux valgus, hallux rigidus, metatarsalgia, and Morton’s disease) first identified by the chiropractor were not present. In April 2020, the Board remanded the pes planus increased rating claim with instructions to obtain a clarifying opinion. The Board asked the AOJ to obtain the new opinion from “the physician who provided the May 2019 foot conditions disability benefits questionnaire. . . If the May 2019 examiner is unavailable for any reason, the AOJ should obtain the requested report from another qualified person.” It appears that the AOJ requested the opinion from the physician who performed the May 2019 examination. But the author of the post-remand opinion, dated April 2020, is a different physician and there are no documents in the claims file indicating that the May 2019 examiner was unavailable. The April 2020 opinion is unfavorable to the claim for an increased rating, indicating that it is likely that symptoms and diagnoses identified in the February 2017 questionnaire were acute and transient. Since the post-remand opinion was not prepared by the physician who performed the May 2019 examination – i.e., the person best positioned to reconcile any contradictions between the findings of his report and the questionnaire submitted by the chiropractor – the Veteran should have the opportunity to obtain a new clarifying opinion from the May 2019 examiner or, if he is unavailable, the Veteran should have the opportunity for a new foot conditions examination.   Increased Rating for the Lower Back To help decide the claim for an increased rating for the Veteran’s low back disability, the AOJ arranged an examination in August 2020. The examiner’s report includes range of motion test results and other information about the symptoms of the Veteran’s degenerative arthritis of the spine and mechanical low back pain. Pursuant to 38 C.F.R. § 4.59, the examination report form asked the examiner to perform range of motion tests in active and passive motion and in weightbearing and in non-weightbearing. According to the August 2020 examination reports, “Passive [range of motion testing] of the spine was not performed as it was not feasible to do this in a safe and reasonable manner.” The examiner also indicated that, “non-weight bearing assessment is not applicable.” “If for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in the case, he or she should clearly explain why that is so.” Correia, 28 Vet. App. at 170. Although the August 2020 examiner may be correct that it is not possible to perform passive range of motion testing or range of motion testing in non-weightbearing, the report did not clearly explain the reasons for that conclusion. The Board will therefore remand the lower back increased rating claim for a new examination. TDIU VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran's earned annual income is below the poverty threshold and in other limited circumstances. 38 C.F.R. § 4.16(a). Some of the recent medical records obtained by the AOJ describe the Veteran as employed as a Finance Technician by the Department of the Navy. But a mental health note from February 2020 suggests that he was considering the decision to request retirement from the civil service on the basis of disability. It is possible that the Veteran’s current employment would be inconsistent with an award of TDIU. But if service-connected disabilities prevent him from working on a full-time basis or if they have, as suggested in the mental health note, caused him to stop working, then a TDIU rating may be appropriate for part of the relevant appeal period. The Board will remand the issue of TDIU to give him the opportunity to submit information about his recent work. It would be useful if he would clarify whether he is currently working and, if so, whether his work is full-time or part-time. Information on wages and salary and, if appropriate, whether he has retired for reasons related to his service-connected disability would also be useful. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran’s VA treatment since October 2020. 2. Determine whether the physician who examined the Veteran’s feet and who prepared a disability benefits questionnaire on the severity of his service-connected pes planus with plantar fasciitis in May 2019 is available to prepare a supplemental report. If the May 2019 examining physician is not available, the AOJ should document this in the claims file and write to the Veteran offering him the opportunity for a new VA feet examination. If the Veteran responds that he does wish to participate in a new examination, or if his response to the AOJ’s letter otherwise indicates that his service-connected pes planus with plantar fasciitis has increased in severity since May 2019, then the AOJ should schedule a new examination to determine the current severity of the Veteran’s service-connected disabilities of the feet. If the May 2019 examining physician is available to provide a supplemental report, the AOJ should ask him to review the claims file – especially the February 2017 questionnaire prepared by the Veteran’s chiropractor, his own May 2019 examination report, and the supplemental opinion prepared by another physician in April 2020. The May 2019 examiner should comment on the April 2020 report and indicate any areas of agreement or disagreement. 3. Write to the Veteran and ask him to provide information about his current and recent employment. Advise him that his VA treatment records describe him as being employed as a Finance Technician by the Department of the Navy. Ask the Veteran to complete an updated VA Form 21-8940 (“Veteran's Application for Increased Compensation Based on Unemployability”) with information about his employment and earnings history. 4. Schedule a VA examination to ascertain the current severity of the Veteran’s service-connected thoracolumbar spine disability. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner who completes the questionnaire should determine the effective range of motion in the Veteran’s thoracolumbar spine, and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of range of motion test results, in degrees, for both active and passive motion, and in weight bearing and nonweight-bearing. IF THE EXAMINER BELIEVES THAT TESTING USING ONE OR MORE OF THESE METHODS IS UNSAFE OR IMPACTICAL, HE OR SHE SHOULD CLEARLY EXPLAIN THE MEDICAL REASONS FOR THAT CONCLUSION. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. To comply with Sharp v. Shulkin, 29 Vet. App. 26, 33, the examiner should describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability of the lumbosacral spine during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the description of reduced range of motion during flares or repetitive use. If the examiner indicates that pain does not cause functional loss with respect to the lumbosacral spine, he or she should thoroughly explain the medical reasons for that opinion. 5. The AOJ must ensure that the examination reports and opinions requested comply with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.