Citation Nr: 21020830 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 11-22 176 DATE: April 8, 2021 ORDER Entitlement to an initial 10 percent rating, but not higher, for a right ankle disability is granted. REMANDED Entitlement to service connection for a left arm disability, other than the left shoulder disability, is remanded. Entitlement to service connection for a left-sided chest disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to an initial compensable rating for bilateral blepharoconjunctivitis is remanded. FINDING OF FACT The Veteran’s right ankle disability has been manifested by pain. CONCLUSION OF LAW The criteria for a 10 percent rating, but not higher, for a right ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Codes 5271-5024. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1978 to October 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and December 2009 and December 2017 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. In July 2014, May 2018, and May 2020, the Board remanded the case for further development. In February 2021 the Veteran requested a second Board hearing; however, in March 2021 the Veteran withdrew that request and indicated that he wished to have his appeal adjudicated by the Board “without further delay.” As such, the Board will adjudicate the appeal based on the current record. A request for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) (whether expressly raised or implied by the record) is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once the issue of entitlement to a TDIU is raised, it is “part of the claim for benefits for the underlying disability.” Id. at 453-54. Here, the evidence shows that the Veteran is working so the TDIU issue is not before the Board. INCREASED RATING Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The 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). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to an initial 10 percent rating, but not higher, for a right ankle disability The Veteran is seeking a 30 percent rating for the right ankle disability comprised of a 10 percent rating for tendonitis, a 10 percent rating for ankle pain, and a 10 percent rating for heel pain. The Veteran’s right ankle has a noncompensable rating under DC 5271, which pertains to limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Pursuant to this code, marked limitation warrants a 20 percent rating, while moderate limitation warrants a 10 percent rating. Id. The normal range of motion of the ankle is from 0 to 20 degrees for dorsiflexion, and from 0 to 45 degrees plantar flexion. Id., Plate II. The Board notes that the regulations pertaining to rating the ankles have been amended, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). These amendments provide specific ranges of motions required to meet the diagnostic criteria. The Board notes that these amendments are not applicable any earlier than their effective date. As there is no evidence dated after February 7, 2021, these amendments are not for application. Where a Veteran has a noncompensable rating for a musculoskeletal disability and complains of pain on motion, he or she is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Here, the Veteran seeks a compensable rating for the right ankle disability. A June 2009 private medical record showed right ankle pain with dorsiflexion to 5 degrees and normal plantar flexion. VA medical records show the right ankle was pain free. Two August 2016 VA medical records indicated full strength and range of motion. At a November 2016 VA examination, the Veteran reported no symptoms, and that the disability was stable. He wore an insole wedge to alleviate pain and discomfort. The ankle had normal range of motion with dorsiflexion to 20 degrees and plantar flexion to 45 degrees. There was no pain on examination with active or weight-bearing. At a January 2021 VA examination, the examiner diagnosed tendonitis. The Veteran reported no symptoms, pain, or flare-ups. Specifically, the Veteran indicated that the disability had resolved. The ankle had normal range of motion with dorsiflexion to 20 degrees and plantar flexion to 45 degrees. There was no pain on examination with active and passive motion, weight-bearing, or non-weight-bearing testing. The Board finds a rating in excess of 10 percent is not warranted. The evidence shows that the Veteran has reported painful motion in his right ankle during the appeal period. See March 2018 notice of disagreement. Notably, the Veteran had right ankle pain with dorsiflexion to 5 degrees. Although the VA examinations showed full range of motion, pain was indicated during the appeal period. Even where the Veteran’s right ankle does not show a compensable loss of range of motion, a Veteran with a noncompensable rating may still be entitled to at least the minimum compensable rating for the joint involved if the evidence shows that the disability is productive of pain, instability or malalignment. See Burton, 25 Vet. App. at 5; Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015). Therefore, the Veteran is entitled to a 10 percent rating for the right ankle disability for painful motion throughout the appeal period. REASONS FOR REMAND 1. Entitlement to service connection for a left arm disability, other than the left shoulder disability, is remanded. 2. Entitlement to service connection for a left-sided chest disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a left knee disability is remanded. At the November 2020 VA examinations, the examiner found no current disabilities or pain in the left arm, left side of the chest, or bilateral lower extremities. The examiner specifically stated that the symptoms were resolved with Cymbalta. While the November 2020 opinion addressed direct and secondary service connection, the examiner did not discuss the Veteran’s left arm, left-sided chest, or bilateral lower extremity pain without the use of Cymbalta. The Board notes that the Veteran’s service-connected left shoulder disability was assessed and not other left arm pain. In the May 2020 remand, the Board instructed that opinions be obtained regarding whether the Veteran’s pain in the left arm, left-sided chest, right leg, and left leg caused him functional impairment. The record shows that while the Veteran has reported experiencing pain in these areas during the appeal, his symptoms are currently being ameliorated through the use of medication. As such, if the Veteran denied experiencing pain at the examination, the remand directed the examiner to consider and discuss whether but for the Veteran’s use of Cymbalta would he experience pain in any of these areas that would cause functional impairment in his earning capacity. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board is remanding the case for compliance with the May 2020 Remand directives. 5. Entitlement to an initial compensable rating for bilateral blepharoconjunctivitis is remanded. At the January 2021 VA examination, the examiner diagnosed blepharitis and dry eye syndrome. Service connection is in effect for blepharoconjunctivitis, which the examiner also noted in the medical history section. The eye conditions disability benefits questionnaire instructs the examiner to complete the relevant sections pertaining to the applicable diagnoses. However, the examiner did not complete the conjunctivitis section of the examination report. As such, the Board finds the January 2021 examination incomplete. When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2021 to the present. 2. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the nature and etiology of his claimed disabilities manifested by left arm pain, left chest pain, and bilateral leg pain. The claims folder should be made available to the examiner for review before the examination. Following evaluation of the Veteran, the examiner should state whether the Veteran has a disability manifested by pain in the left arm (other than the shoulder), left chest, and/or legs. Importantly, if the Veteran denies experiencing pain at the time of the examination, the examiner should consider and discuss whether, but for the Veteran’s use of Cymbalta he would experience pain in any of these areas that would cause functional impairment in his earning capacity. For any such disability found to be present to include pain (present or not) that causes a functional impact on the Veteran’s earning capacity, the examiner should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of the Veteran’s active service to include the 2001 skiing accident that was noted, in part, on a May 2002 medical assessment, as well as the lay statements. If the examiner concludes any such disability is not directly related to service, then the examiner should express an opinion as to whether it is at least as likely as not it was caused or aggravated by the low back disorder. If the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Following the receipt of outstanding records, schedule the Veteran for a VA eye examination to determine the current nature and severity of service-connected blepharoconjunctivitis and dry eye. The examiner must review the claims file and should note that review in the report. Any and all studies or tests deemed necessary should be performed. The examiner should elicit information about the nature of the eye disability and all symptoms or manifestations of the disability when present, even if not present at the time of the examination, including dry eyes and redness. A complete rationale for any opinion expressed should be provided. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass, 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.