Citation Nr: 21023333 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-59 292 DATE: April 20, 2021 ORDER An increased rating of 10 percent but not higher for the Veteran’s right ankle disability is granted prior to March 11, 2019; a rating in excess of 10 percent from that date is denied. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to service-connected disability is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disability is remanded. Entitlement to service connection for a left hip disability, to include as secondary to service-connected disability is remanded. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 1, 2017 is remanded. FINDING OF FACT Throughout the pendency of the appeal the Veteran’s right ankle disability has been manifested by painful motion, but not limitation of dorsiflexion or plantar flexion limited to a “marked” degree. CONCLUSION OF LAW Prior to March 11, 2019 the criteria for a rating of 10 percent for a right ankle disability have been met, from that date the criteria for a rating in excess of 10 percent for have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5271 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1985 to January 1987. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office. In October 2018, the Board remanded the matters for additional development of the evidence. A September 2020 rating decision granted entitlement to TDIU effective April 1, 2017. An October 2020 rating decision increased the Veteran’s service-connected right ankle disability to 10 percent effective March 11, 2019. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Code 5271 provided for a 10 percent rating for moderate limitation of motion and a 20 percent [maximum] rating for marked limitation. Normal ranges of ankle motion are dorsiflexion 0 to 20 degrees and plantar flexion 0 to 45 degrees. 38 C.F.R. § 4.71a, and Plate II. Moderate and marked limitation of motion were not specifically defined under the old Code. As of February 7, 2021, under the amended criteria for Code 5271, what qualifies as “moderate” and “marked” is now defined. Specifically, “moderate” limitation of range of motion is shown with less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and warrants a 10 percent rating. A “marked” limitation of motion is shown with less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, and warrants a 20 percent [maximum] rating. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 1. Increased rating for the Veteran's right ankle disability On June 2015 ankle conditions DBQ, the diagnosis was tendonitis. The Veteran reported pain in both ankles at the dorsiflexor tendons and limited walking due to pain and incoordination. Right ankle range of motion was normal. The Veteran reported flare-ups occurring every other week lasting up to one week. Estimated range of motion during a flare-up was noted as dorsiflexion to 15 degrees, and plantar flexion to 40 degrees. Muscle strength testing was abnormal with plantar flexion and dorsiflexion each 4/5. Ankylosis was not shown. On March 11, 2019 ankle conditions DBQ, the examiner found that the Veteran did not have a current diagnosis related to the right ankle. The Veteran reported that the right ankle was “okay,” but gave her problems occasionally. Range of motion testing of the right ankle was normal. Pain was not shown on examination. Muscle strength of the right ankle was normal. On August 2020 ankle conditions DBQ, the diagnosis was right ankle tendonitis. Range of motion of the right ankle was normal. Pain with weight bearing was noted. Muscle strength of the right ankle was normal. Ankylosis was not shown. Prior to March 11, 2019 Prior to March 11, 2019 the Veteran’s right ankle disability has been manifested by painful motion. See June 2015 Ankle Conditions DBQ. The Board finds that, considering the guidelines in 38 C.F.R. § 4.59, such manifestations place the evidence for and against the assignment for a 10 percent rating for the service-connected right ankle disability prior to March 11, 2019 at least in equipoise. Resolving reasonable doubt in the Veteran’s favor, as required (see 38 C.F.R. § 4.3) the Board finds that a 10 percent rating is warranted for the right ankle disability prior to March 11, 2019. From March 11, 2019 The Veteran is currently assigned a 10 percent rating for a right ankle disability from March 11, 2019 based on evidence of painful motion on examination in March 2019. Initially, it is noted that from February 7, 2021 the Veteran is entitled to have her service-connected right ankle disability considered under both the old and new rating criteria of Code 5271. Notably, the Veteran’s right ankle was last examined in August 2020. The Board has considered whether remand for a new examination following the modification of Code 5271 is necessary. However, on examination in both March 2019, and August 2020 the range of motion of the right ankle was normal, and the Veteran has not made an allegation of worsening since August 2020. Under such circumstances, a new examination following the modification of Code 5271 is not warranted. The medical evidence of record does not suggest the presence of limitation of motion equivalent to marked limitation of motion, and the record does not show or suggest the presence of ankylosis. Accordingly, the Board finds that continued rating based on painful motion (see 38 C.F.R. § 4.59) is appropriate during this time, and a rating in excess of 10 percent from March 11, 2019 is not warranted. REASONS FOR REMAND 2. 3. 4. 5. Entitlement to service connection for left and right knee disabilities, and entitlement to service connection for left and right hip disabilities, all to include as secondary to service-connected disability The Veteran contends that her left and right knee and left and right hip disabilities are secondary to a service-connected disability. Notably, the Veteran has been awarded service connection for a low back disability, bilateral lower extremity radiculopathy secondary to her service-connected low back disability, and bilateral ankle disabilities secondary to her service-connected low back disability. Whether the Veteran’s bilateral knee and/or bilateral hip disabilities are caused or aggravated by a service-connected disability is a medical question which requires a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). On October 2018 remand, the Board directed examination of the Veteran to determine the nature and likely etiology of her bilateral knee and bilateral hip disabilities. The examiner was specifically instructed to consider whether the disabilities were caused or aggravated by a service-connected disability to include (1) a low back disability, (2) bilateral lower extremity radiculopathies, and (3) bilateral ankle tendonitis. Upon review of the examinations obtained in response to the October 2018 remand directives, the Board finds that there has not been substantial compliance with such remand directives, and that corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, new medical opinions that adequately addresses whether the Veteran’s right and left knee disabilities and/or right and left hip disabilities were caused or aggravated by her service-connected (1) low back disability, (2) bilateral lower extremity radiculopathy, and (3) bilateral ankle tendonitis is necessary. In February 2021, the Veteran’s representative contended that the concept of kinetic chain is applicable in this case. Citations to medical literature were provided. This material must be considered by the examiner. 6. Entitlement to TDIU prior to April 1, 2017 A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For purposes of entitlement to a TDIU rating, disabilities resulting from a common etiology are considered as one disability. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the CAVC defined substantially gainful employment as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Prior to April 1, 2017 the Veteran’s service-connected disabilities met the schedular requirements for a TDIU rating, and the remaining question to be resolved is whether they rendered her unemployable prior to April 1, 2017. There is some conflicting information relating to when the Veteran ended her employment, and whether prior to the Veteran’s official end of employment any such employment had become marginal or sheltered. A November 2017 VA Form 21-8940 provides an end of employment date of February 2017. On April 2020 VA Form 21-8940 the Veteran indicated she became too disabled to work in January 2016. On July 2020 VA Form 21-4192, the Veteran’s former employer indicated she last worked in January 2017, but was last employed on March 31, 2017. Notably, the employer indicated that the amount earned for the twelve months preceding the last date of employment (before deductions) was listed as just over $1300. It is necessary to address whether the Veteran’s employment had become sheltered or marginal due to her disabilities prior to the official termination of her employment on March 31, 2017 to determine an effective date of TDIU. Accordingly, clarification is necessary for proper consideration of the claim to an earlier effective date of TDIU. The matters are REMANDED for the following action: 1. Arrange for the Veteran’s record to be forwarded to an appropriate clinician for review an addendum medical advisory opinion regarding the etiology of her (1) right and left knee disabilities, and (2) right and left hip disabilities. Upon review of the record (to include February 2021 correspondence from the Veteran’s representative), the consulting provider should: (a.) Identify (by diagnosis) each (1) left and right knee disability, and (2) left and right hip disability entity shown during the pendency of the instant claim. (b.) Identify the likely etiology for each knee disability diagnosed. Specifically, is it at least as likely as not (a 50 percent probability or greater) that the disabilities were caused or aggravated by the Veteran’s service-connected (1) low back, (2) bilateral lower extremity radiculopathy, and/or (3) bilateral ankle disability? The opinion and rationale must specifically address whether the service-connected disabilities contributed to an altered gait capable of causing or aggravating such disabilities. (c.) Identify the etiology for each hip disability diagnosed. Specifically, is it at least as likely as not (a 50 percent probability or greater) that the disabilities were caused or aggravated by the Veteran’s service-connected disabilities? The opinion and rationale must specifically address whether the service-connected disabilities contributed to an altered gait capable of causing or aggravating such disabilities. (d.) If it is determined that the Veteran’s left and right knee disabilities and left and right hip disabilities were not caused or aggravated by her service-connected disabilities, identify the etiology and explain why that is so. Attention is called to the medical literature cited by the Veteran’s representative in a February 2021 brief (posted to the electronic file on February 24, 2021). The representative cited two medical authorities for the application of the “kinetic chain” concept to this Veteran’s case. The examiner must review and comment on the literature and whether it does apply to this Veteran. The clinician must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Ask the Veteran to clarify the nature of her duties (whether her employment duties were limited-and if so what required duties were excused for accomodation of her service-connected disabilities); her annual income from January 2016 to April 1, 2017 (to determine whether the employment was substantially gainful during this time). Conduct all further development indicated based on such response. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.