Citation Nr: 21021801 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-53 133 DATE: April 14, 2021 ORDER Entitlement to a 10 percent rating for right foot sprain is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to a rating in excess of 20 percent for subpatellar chondromalacia of the right knee is remanded. Entitlement to a rating in excess of 20 percent for subpatellar chondromalacia of the left knee is remanded. Entitlement to a rating in excess of 10 percent for right ankle sprain is remanded. Entitlement to a rating in excess of 10 percent for right foot sprain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran’s right foot sprain is manifested by right foot pain and frequent flare ups that interfere with his ability to ambulate and require the use of a shoe insert and an assistive device. CONCLUSION OF LAW The criteria for at least a 10 percent rating for right foot sprain are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.71A, Diagnostic Code (DC) 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1975 to June 1995. He also had a period of active duty for training (ACDUTRA) from July 1974 to November 1974. His awards include the Army Commendation Medal. These matters come before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision. In May 2017, a Decision Review Officer (DRO) awarded a separate noncompensable (0 percent) disability rating for right foot sprain (previously rated together with the service-connected right ankle disability as right ankle sprain and right foot injury), from July 19, 2016. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a December 2020 hearing and a transcript of the hearing is associated with his claims file. As for characterization of the issues on appeal, the Veteran and his representative reported during the December 2020 Board hearing that the Veteran’s work hours had been reduced due to his service-connected disabilities and that he was employed in a protected environment in that he was given special accommodations due to his disabilities. Entitlement to a TDIU may be an element of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. at 453. Given the evidence of current disabilities, the Veteran’s claim for the highest ratings possible for his service-connected bilateral knee, right foot, and right ankle disabilities, and the evidence of potential unemployability due to service-connected disabilities, the issue of entitlement to a TDIU is properly before the Board under Roberson and Rice and the Board has expanded the appeal to include this issue. Lastly, the Board is awarding a 10 percent rating for right foot sprain during the entire claim period. However, the issue of entitlement to a rating in excess of 10 percent for right foot sprain is being remanded for additional development prior to determining whether the Veteran meets the criteria for a rating higher than 10 percent for the service-connected right foot disability. Increased Rating Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4 ) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. If two ratings are potentially applicable, 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a compensable rating for right foot sprain The Veteran’s right foot sprain is rated under 38 C.F.R. § 4.71A, DC 5284 as a foot injury. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under DC 5284, a 10 percent rating is warranted for a moderate foot injury, a 20 percent rating is warranted for a moderately severe foot injury, and a 30 percent rating is warranted for a severe foot injury. A note to DC 5284 provides that a 40 percent disability rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71A, DC 5284. Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds, for the following reasons, that the Veteran’s right foot sprain has met the criteria for at least a 10 percent rating during the entire claim period. The Veteran’s claim for an increased rating for right foot sprain was received on July 19, 2016. The Veteran reported during an August 2016 VA foot examination that he experienced “hard pain” in the right foot while walking. There was pain “with every step” and he was unable to walk far without too much pain. The examiner who conducted the August 2016 examination concluded that the Veteran had a moderate right foot injury and that the disability chronically compromised weight-bearing. There was no pain on physical examination, but the Veteran reported that the pain occurred while walking. There were contributing factors of disability in terms of pain on weight-bearing and right foot pain significantly limited functional ability when the foot was used repeatedly over a period of time in that there was pain with “lots of walking.” The Veteran regularly used a cane mostly due to knee and ankle disabilities, but “some for [his] foot.” A diagnosis of a right foot sprain was provided. This disability impacted the Veteran’s ability to work in that he experienced pain with walking. In his February 2017 notice of disagreement (VA Form 21-0958) and during the December 2020 Board hearing, the Veteran contended that the August 2016 examiner did not adequately assess his service-connected right foot disability and that there was information he provided to the examiner that is not recorded in the examination report. Specifically, he experienced constant foot pain and flare ups of pain after standing for 15 to 30 minutes or when exposed to cold weather. As a result, he was limited in his ability to perform physical activities around the house and was assigned more non-physical tasks at work that did not require extensive walking or standing. He used shoe inserts to help treat his symptoms. The above evidence reflects that the Veteran experiences right foot disability manifested by constant pain which increases with weight-bearing, significantly limits his ability to stand, walk, and perform physical activities at work and at home, and which requires the use of shoe inserts and a cane. The examiner who conducted the August 2016 examination concluded that the Veteran had a moderate right foot injury and that the disability chronically compromised weight-bearing. In light of the Veteran’s reported symptoms, the presence of flare ups with prolonged standing and walking, the fact that the foot symptoms interfere with his ability to stand and ambulate and require the use of an assistive device, the conclusion of the August 2016 examiner that the Veteran experienced a moderate foot injury, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the symptoms of his service-connected right foot sprain have more closely approximated the criteria for at least a 10 percent rating under DC 5284 during the entire claim period. This contemplates a moderate right foot injury. 38 C.F.R. § 4.71a, DC 5284. As explained above, the Board is remanding the issue of entitlement to a rating in excess of 10 percent for right foot sprain for further development. Specifically, a new examination is necessary to assess the severity of the Veteran’s right foot disability prior to determining whether any rating higher than 10 percent is warranted during the claim period. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for subpatellar chondromalacia of the right knee, entitlement to a rating in excess of 20 percent for subpatellar chondromalacia of the left knee, entitlement to a rating in excess of 10 percent for right ankle sprain, and entitlement to a rating in excess of 10 percent for right foot sprain are remanded. The Veteran provided information during the December 2020 Board hearing which indicates that the most recent VA knee, ankle, and foot examinations in August 2016 did not adequately assess his service-connected disabilities and/or that his disabilities have worsened in the years since the examinations. For instance, the August 2016 examination reports reflect that the Veteran did not experience flare ups of knee, ankle, or foot symptoms. However, he reported during the December 2020 hearing that he did experience flare ups of his disabilities with prolonged standing and walking and exposure to cold temperatures. Moreover, the August 2016 VA knee and ankle examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the examination reports do not contain passive range of motion measurements or pain on both weight-bearing and non weight-bearing testing. Also, the August 2016 examiner noted that the Veteran was not being examined immediately after repetitive use over time and that the examinations were medically consistent with his statements describing functional loss with repetitive use over time. The examiner noted that pain significantly limited functional ability of the knees and right ankle with repeated use over a period of time, but the examiner was unable to describe such functional loss in terms of range of motion loss. The only explanation for this opinion was that the Veteran was not being examined immediately following repeated use over time. It is unclear whether the August 2016 examiner’s inability to describe functional loss with repeated use over time in terms of range of motion was based upon all procurable and assembled data. In Jones v. Shinseki, 23 Vet. App. 382 (2009), the United States Court of Appeals for Veterans Claims (Court) held that before the Board can rely on a health care professional’s conclusion that an opinion would be speculative, the health care professional must explain the basis for such an opinion or the basis must otherwise be apparent in the Board’s review of the evidence, it must be clear that the health care professional has considered all procurable and assembled data, the health care professional must do all that reasonably should be done to become informed about a case, and the health care professional must clearly identify precisely what facts cannot be determined. If the record is ambiguous as to whether sufficient information was obtained, “it is the Board’s duty to remand for further development.” Id. See also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (although an examiner couched her refusal to offer an opinion regarding flares in broad terms, stating there is “no conceptual or empirical basis for making such a determination without directly observing function under these circumstances,” the apparent universality of this statement is contradicted by VA’s Clinician’s Guide, which specifically advises examiners to try to procure information necessary to render an opinion regarding flares from veterans). In light of the deficiencies of the August 2016 examinations and the evidence of potential worsening of the Veteran’s disabilities, the Board finds that a remand is necessary to afford the Veteran new examinations to assess the severity of his service-connected bilateral knee, right ankle, and right foot disabilities. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Salt Lake City Health Care System and are dated to January 2019. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. Since a decision on the remanded increased rating issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. The issue of entitlement to a TDIU should be adjudicated in the first instance by the agency of original jurisdiction (AOJ), to include appropriate notification. The Veteran should also be given an opportunity to submit a formal application for a TDIU (VA Form 21-8940). Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Send the Veteran a letter that provides him with notice as to the information and evidence that is required to substantiate his claim for a TDIU and ask the Veteran to complete a formal application for a TDIU (VA Form 21-8940) and to report his education and employment history and earnings, especially for the period since July 2015. A copy of this letter must be included in the claims file. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for right foot disability, right ankle disability, and knee disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for right foot disability, right ankle disability, and knee disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s outstanding VA treatment records from the VA Salt Lake City Health Care System for the period since January 2019; and all such relevant records from any other sufficiently identified VA facility. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right foot disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must provide reasons for any opinion given. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the right and left ankle. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. The examiner must provide reasons for any opinion given. 6. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the right and left knee. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. (CONTINUED ON NEXT PAGE) The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.