Citation Nr: 21016081 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-05 826A DATE: March 19, 2021 ORDER Entitlement to a 20 percent rating for a left ankle disability is granted. Entitlement to an effective date prior to November 30, 2015 for service connection of a left ankle disability is denied. REMANDED Entitlement to a separate rating for neurological manifestations of a left ankle disability is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s left ankle disability was characterized by marked limited motion of the ankle. 2. The Veteran first filed a claim of entitlement to service connection for a left ankle disability on November 30, 2015, the effective date of his grant of service connection. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a 20 percent rating for a left ankle disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.6, 4.10, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for an effective date prior to November 30, 2015 for service connection of a left ankle disability have not been met. 38 U.S.C. §§5107, 5110; 38 C.F.R. §§3.102, 3.157, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 1979 to March 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2016 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran died in January 2018, and in March 2019 the appellant, his surviving spouse, was substituted as claimant. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b). The appellant and her daughter testified at a June 2020 hearing before the undersigned Veterans Law Judge, a transcript of which is attached to the record. 1. Entitlement to a rating in excess of 10 percent for a left ankle disability The appellant asserts entitlement to a disability rating in excess of the original 10 percent granted by the AOJ for the Veteran’s left ankle disability. The 10 percent rating was based upon moderate limitation of motion of the ankle based on dorsiflexion less than 15 degrees. To warrant a higher rating, the ankle disability must manifest marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Words such as “moderate” and “marked” are not defined in the VA Rating Schedule. 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. The Board observes that recent revisions to the criteria of DC 5271 effective February 7, 2021 clarify that prior regulatory references to “marked” means less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and that “moderate” means less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. 85 Fed. Reg. 76453 (Nov. 30, 2020). In proposing this rule, VA indicated that this standard was currently used by VA and was being codified “as a clarification of current policy and would ensure consistent application of these criteria among rating personnel.” See 82 Fed. Reg. 35719, 35723 (Aug. 1, 2017). The Board finds that these are non-substantive changes which do not require AOJ review in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board notes that the potential neurological aspect of the Veteran’s left ankle disability is discussed in the remand section below. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records indicate the Veteran injured his ankle in both October 1981 and August 1990. September 1990 x-ray imaging revealed evidence of an old break, determined to likely be from the 1981 injury, as well as a severe ankle sprain from the recent injury. The Veteran was given several months of physical therapy and in November 1990 was assessed as exhibiting a resolving ankle sprain. April 2007 VA x-ray imaging revealed no acute findings, including fracture or evidence of destructive process, with normal joint spacing maintained. November 2015 VA treatment records indicate the Veteran underwent both physical and monopolar needle study testing after exhibiting signs of lower extremity neuropathy. Physical testing revealed reduced cold sensation in the feet, normal vibration sensation in the great toes, no weakness of the ankle in plantar or dorsiflexion. However, focal atrophy of the left extensor digitorum brevis was observed. A monopolar needle study indicated deep tendon reflexes were normal at the knees but abnormal at the left ankle. VA clinicians found electrodiagnostic evidence of a mild sensory motor polyneuropathy in the lower extremities as well as a probable superimposed incomplete left deep peroneal mononeuropathy, likely at the level of the ankle, which was possibly related to prior left ankle injury. The Veteran was afforded a VA ankle examination in February 2016. He reported his two inservice ankle injuries and stated his left ankle continued to give him trouble, including flareups featuring worsening pain and increased difficulty walking, standing and climbing. The examiner recorded full plantar flexion but reduced dorsiflexion of zero to 10 degrees. Pain was noted on weight bearing and after repetitive use testing. Additional loss of motion was recorded after three repetitions, with dorsiflexion from zero to five degrees. The examination was not conducted after repetitive use or during a flareup, but the examiner found the Veteran’s statements describing increased functional loss medically consistent with the examination findings. Unfortunately, the examiner did not attempt to estimate the additional functional loss in terms of degrees. The Veteran’s muscle strength in both plantar and dorsiflexion was normal, with no atrophy, ankylosis, instability or assistive devices noted. A concurrent VA foot examination observed the Veteran manifested bilateral hammer toes, hallux valgus and degenerative arthritis. In a May 2016 notice of disagreement, the Veteran reported ongoing left ankle pain since his inservice injuries and noted continuous use of an ankle brace since May 2016. In his February 2017 Board appeal, the Veteran reported constant ankle pain, swelling after repetitive use and claimed nerve, tendon and ligament damage, indicating his prescription for Gabapentin (used to treat neurological pain) had just been increased. At the June 2020 Board hearing, the appellant testified that as he got older, the Veteran’s left ankle would “give out,” while their daughter described the Veteran as being bothered by a “wobbly” left ankle. April 2017 VA treatment records note a diagnosis of “peripheral neuropathy, probably alcohol related.” After a neurological evaluation and noting the Veteran’s prescription for Gabapentin, a VA neurologist noted the presence of both a sensory motor polyneuropathy in the lower extremities as well as a “probable superimposed incomplete left deep peroneal mononeuropathy, likely at the level of the ankle, which may relate to prior left ankle injury in the past.” Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran manifested marked limited motion of the left ankle for the entire period on appeal. According to the only VA ankle examination of record, the Veteran’s ankle dorsiflexion was limited to 10 degrees, decreasing to 5 degrees after only three repetitions. In lay statements and treatment records the Veteran consistently reported decreased range of motion after repetitive use or during flareups. While the VA examiner failed to estimate the Veteran’s range of motion during these occurrences, he indicated that the Veteran’s descriptions were consistent with the examination results. The Board notes the Veteran is competent to report increased functional loss during flares and on repetitive use and finds these statements to be both consistent and credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As noted above, words such as “marked” and “moderate” are not defined in the Ratings Schedule. However, the Board observes that normal dorsiflexion is zero to 20 degrees, while the Veteran’s maximum dorsiflexion after three repetitions was five degrees, with probable additional functional limitation after repetitive use due to the level of swelling described by the Veteran. Additionally, lay statements and VA treatment records confirm that shortly after the February 2016 VA examination he was prescribed a left ankle brace that he was instructed to wear constantly when not showering or sleeping. Finally, while the VA examination did not note instability, both the Veteran’s wife and daughter testified to his difficulty ambulating, and the Board finds these statements credible as well. Therefore, the maximum rating of 20 percent due to marked limited motion of the ankle is granted for the entire period on appeal. A rating in excess of 20 percent is not warranted, as neither the lay nor medical evidence of record indicates the Veteran manifested left ankle ankylosis at any point during the appeal period. 2. Entitlement to an earlier effective date for service connection of a left ankle disability The appellant asserts entitlement to an earlier effective date for service connection of a left ankle disability. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. §3.400(b)(2)(i). The reference above to “the date entitlement arose” is not defined in the current statute or regulation. The Court of Appeals for Veterans Claims has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a “facts found” basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. However, the date entitlement arose is not the date that VA receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. “Claim” is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). However, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary (i.e., VA Form 21-526). 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). In this case, the Veteran first filed a VA Form 21-526, Application for Disability Compensation and Related Compensation Benefits, on November 30, 2015. A February 2016 VA examiner opined that the Veteran’s inservice left ankle injuries were at least as likely as not the cause of his current ankle disability, and the AOJ granted entitlement to service connection in a March 2016 rating decision. This decision set the initial date of compensation as November 30, 2015, the date of the receipt of the Veteran’s claim for benefits. At the June 2020 Board hearing, the appellant testified that the Veteran had manifested left ankle symptoms since active service and sought VA treatment for a left ankle disorder as early as 2007 or 2008. While acknowledging the Veteran’s inservice ankle injuries and finding the hearing testimony of the appellant credible, the Board finds there is no basis for an earlier effective date. The controlling law sets the date of a grant of service connection as the date of claim or the date of entitlement arose, whichever is later. 38 U.S.C. §5110(a); 38 C.F.R. §3.400. Although the Veteran’s date of entitlement may have arisen before the date of his original service connection claim, the AOJ was bound to assign the initial date of compensation as the date his VA Form 21-526 claim for benefits was received. The Board has considered whether 38 C.F.R. § 3.157(b) is applicable in determining whether an application was filed prior to March 24, 2015, when standardized forms were not required. See 79 Fed. Reg. 57,660 (Sept. 24, 2014). This provision stated that once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions will be accepted as an informal claim for increased benefits or an informal claim to reopen. However, the Court has held that this regulation only applied to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in 38 C.F.R. § 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that § 3.157 applied to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). Specifically, VA medical records were not accepted as informal claims for disabilities where service connection had not been established, since the mere presence of medical evidence did not establish intent on the part of the Veteran to seek service connection for a disorder. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999). Thus, any reference to left ankle symptoms in the VA clinic setting could not constitute a formal or informal claim under 38 C.F.R. § 3.157(b). Pacheco; Sears, 16 Vet. App. at 249. As the Board is equally bound by the provisions of 38 U.S.C. §5110, there is no reasonable doubt to be resolved in the appellant’s favor, and the claim must be denied. 38 U.S.C. §§5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Entitlement to a separate rating for neurological manifestations of a left ankle disability is remanded. As noted above, the Veteran claimed in his February 2017 Board appeal that he manifested nerve, tendon and ligament damage. VA treatment records indicate the Veteran suffered from both poly and mononeuropathy of the lower extremities, with the polyneuropathy noted as probably alcohol-related while the left ankle mononeuropathy “may” have been due to a past ankle injury. Unfortunately, terms such as “may or may not” are too speculative to establish a causal relationship. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Therefore, remand for additional medical opinion is required in order to determine whether the Veteran’s lower left extremity neuropathy was proximately due to his inservice left ankle injuries. The matters are REMANDED for the following action: 1. Attempt to locate any remaining VA treatment records, to include those from 1993 to 2007, and attach them to the claims file. 2. Then, forward the claims file to a qualified VA examiner for an addendum opinion regarding the nature and etiology of the Veteran’s left leg neuropathy. The examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left leg neuropathy, identified by VA clinicians as “probable incomplete left deep peroneal mononeuropathy,” was due to his inservice ankle injuries. A complete rationale must be provided for any opinion offered. In providing the requested opinion(s), the examiner is requested to address the following: •November 2015 VA treatment records which note incomplete probable left deep peroneal neuropathy that “may” relate to a prior ankle injury, with EMG testing indicating “left peroneal CMAP amplitude is markedly small and distal latency is marginally prolonged recording from the extensor digitorum brevis.” (continued on the next page) •Whether there is any medical reason to accept or reject the Veteran’s claim that his inservice ankle injuries (documented in October 1981 and August 1990 STRs) caused nerve damage, as well as the Board hearing testimony of the Veteran’s wife and daughter describing his lower extremity instability and difficulty walking. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.