Citation Nr: 21023344 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-09 949 DATE: April 20, 2021 THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a left ankle disability. 2. Entitlement to a rating in excess of 10 percent for a left knee disability. 3. Entitlement to a rating in excess of 10 percent for residuals of right tibia fractures. 4. Entitlement to a rating in excess of 10 percent prior to August 6, 2020, and 40 percent thereafter, for left lower extremity radiculopathy. 5. Entitlement to a combined schedular rating in excess of 90 percent. REMANDED Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a rating in excess of 10 percent for residuals of right tibia fractures is remanded. Entitlement to a rating in excess of 10 percent prior to August 6, 2020, and 40 percent thereafter, for left lower extremity radiculopathy is remanded. Entitlement to a combined schedular rating in excess of 90 percent is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1975 to March 1996. These claims come before the Board of Veterans' Appeals (Board) on appeal from May 2009 and April 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was last before the Board in June 2017 and February 2020. Along with the above listed issues, the Board remanded the matter of entitlement to service connection for a right knee disability. In an August 2020 rating decision, the Veteran was granted service connection for a right knee disability, and therefore, that matter is no longer before the Board. The appeal has been returned for further appellate review. 1. Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded. The Veteran contends that his service-connected left ankle disability warrants a higher rating. The Veteran filed his current claim for an increased rating in August 2008. In March 2009 the Veteran was afforded a VA examination which found crepitus and tenderness to the entire left ankle without guarding. The examiner noted painful motion with evidence of weakness and decreased strength with range of motion, but recorded normal range of motion. There was no ankylosis noted. In his February 2010 Notice of disagreement, the Veteran argued that he was entitled to a higher disability rating because he wore a brace and experienced instability and continuing, daily pain, resulting in an abnormal gait. In January 2016, the Veteran was afforded a new VA examination for his left ankle disability. The Veteran reported ankle rolling while walking and stated that he occasionally wore a brace. Upon physical examination the Veteran’s range of motion was limited to 10 degrees dorsiflexion, but there was no limitation of plantar flexion. There was no pain with weight bearing, no objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue, or objective evidence of crepitus. There was no additional loss of function after observed repetitive use or after repeated use over time. The Veteran reported flare ups during which pain and lack of endurance limited functional ability. However, the examiner was not able to able to describe this in terms of degrees of range of motion, stating: “The Veteran is examined at baseline.” This matter was remanded in June 2017 to afford the Veteran a new VA examination in order to determine the current severity of the Veteran’s left ankle disability. Specifically, the Board found that the most recent VA examination did not comply with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2016) (holding that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Upon remand this was not accomplished, so the Board once again remanded the matter in February 2020 to afford the Veteran a new VA examination. The Veteran was afforded such a VA examination in August 2020. The report revealed dorsiflexion limited to 10 degrees and plantar flexion limited to 15 degrees. Pain was noted on examination on rest/non-movement in moth dorsiflexion and plantar flexion. There was evidence of pain with weight bearing and crepitus. There was no additional functional loss after repetitive-use testing. While pain, weakness, and fatigue limited functional ability with repeated use over time, there was no additional loss of range of motion. Left ankle instability was suspected, and the joint displayed laxity compared with the opposite side according to testing. The Veteran was noted to wear a brace constantly. However, the examiner did not address the Veteran’s flare ups noted in the January 2016 VA examination. Therefore, upon remand, the Board finds that a new VA examination, which addresses the Veteran’s noted flare ups, is necessary to determine the severity of the Veteran’s left ankle disability. 2. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. The Veteran contends that his service-connected left knee disability warrants a higher rating. The Veteran filed his current claim for an increased rating in August 2008. In March 2009 the Veteran was afforded a VA examination which found: “crepitus and lateral joint line tenderness without guarding. Painful with motion. No evidence of weakness, fatigue, spasm, lack of endurance, incoordination, atrophy, tone, or decreased strength with ROM.” There was full range of motion without limitations following repetitive use and instability tests were negative.” In his February 2010 Notice of disagreement, the Veteran argued that he was entitled to a higher disability rating because his knee constantly buckled under a plethora of different circumstances, and that because of his instability he had to wear a knee brace. In January 2016, the Veteran was afforded a new VA examination for his left ankle disability. The Veteran reported ankle rolling while walking and stated that he occasionally wore a brace. Upon physical examination the Veteran range of motion was limited to 120 degrees flexion, but no limitation of extension. There was no pain with weight bearing, no objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue, or objective evidence of crepitus. There was no additional loss of function after observed repetitive use or after repeated use over time. No flare ups were recorded. The examiner found no history of recurrent subluxation or lateral instability. Joint stability testing was negative. The Veteran was noted to regularly use canes and braces. The examiner explained the cane was for the Veteran’s service-connected back disability, and the brace was for the left ankle disability. This matter was remanded in June 2017 to afford the Veteran a new VA examination in order to determine the current severity of the Veteran’s left knee disability. Specifically, the Board found that the most recent VA examination did not comply with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2016) (holding that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Upon remand this was not accomplished, so the Board once again remanded the matter in February 2020 to afford the Veteran a new VA examination. The Veteran was afforded such a VA examination in August 2020. The examiner found that the Veteran had left knee range of motion limited to 70 degrees flexion. There was no loss of range of motion of extension. There was pain noted on rest/non-movement with flexion and extension. The report documented no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. However, there was evidence of pain with weight bearing and crepitus. There was no additional los of motion after repetitive use testing. The examiner found pain, weakness, and fatigue limited functional ability with repeated use over a period of time but noted that this did not result in any additional loss in range of motion. No flare ups were recorded. The examiner found moderate history of recurrent subluxation and lateral instability. The results of the anterior and instability tests were normal, while the results of the medial and lateral instability tests revealed a value of 3+. The Veteran reported constant use of a cane and braces for his bilateral knee and ankle conditions. Passive range of motion testing was the same as active range of motion. Based upon the findings of the August 2020 examiner, the RO granted the Veteran a separate disability rating for his left knee based upon instability in a January 2021 rating decision. The RO assigned a rating of 30 percent for severe instability of the left knee and set an effective date of August 6, 2020, the day of the VA examination. However, the Veteran complained of instability, buckling, and falling throughout the period on appeal. Therefore, the Board finds that a remand is necessary in order to obtain a retrospective medical opinion as to the nature and severity of the Veteran’s left knee instability prior to August 6, 2020. 3. Entitlement to a rating in excess of 10 percent for residuals of right tibia fractures is remanded. The Veteran contends that his service-connected left ankle disability warrants a higher rating. The Veteran filed his current claim for an increased rating in August 2008. In March 2009 the Veteran was afforded a VA examination. Inspection showed no lesions, deformities, erythema, ecchymosis, scars or swelling. Palpation showed crepitus slight tenderness to the medial malleolus without guarding. Painful motion was shown. There was no evidence of weakness, fatigue, spasm, lack of endurance, incoordination, atrophy, tone, or decreased strength with range of motion. Dorsiflexion was 20 out of 20 degrees; plantar flexion was 45 out of 45 degrees; inversion was 30 out of 30 degrees; and eversion was 20 out of 20 degrees. No additional loss of range of motion was shown by repetitions times three. There was no varus/valgus angulations of the os calcis in relation to long axis or tibia/fibula. X-ray showed no acute fracture or dislocation but did show calcaneal bone spurs. The examiner diagnosed recurrent right ankle sprains status post right tibia fracture. In his February 2010 Notice of disagreement, the Veteran argued that he was entitled to a higher disability rating because he wore a brace and experienced instability and continuing, daily pain, resulting in an abnormal gait. In January 2016, the Veteran was afforded a new VA examination for his right ankle disability. The Veteran reported ankle rolling while walking and stated that he occasionally wore a brace. Upon physical examination the Veteran range of motion was limited to 10 degrees dorsiflexion, but there was no limitation of plantar flexion. There was no pain with weight bearing, no objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue, or objective evidence of crepitus. There was no additional loss of function after observed repetitive use. While the examiner noted that weakness significantly limited functional ability with repeated use over a period of time, the examiner explained that the limiting function was due to the Veteran’s service-connected back disability which was unrelated to his primary ankle joint pathology. or after repeated use over time. The Veteran reported flare ups during which pain and lack of endurance limited functional ability. However, the examiner was not able to able to describe this in terms of degrees of range of motion, stating: “The Veteran is examined at baseline.” This matter was remanded in June 2017 to afford the Veteran a new VA examination to determine the current severity of the Veteran’s left ankle disability. Specifically, the Board found that the most recent VA examination did not comply with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2016) (holding that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Upon remand this was not accomplished, so the Board once again remanded the matter in February 2020 in order to afford the Veteran a new VA examination. The Veteran was afforded such a VA examination in August 2020. The report revealed a clinically normal ankle. Instead the VA examiner evaluated the Veteran’s residuals of right tibia fracture as a right knee disability. The Veteran was subsequently granted service connection for a right knee disability in a September 2020 rating decision and assigned separate ratings of 10 percent from the date of claim for painful motion, and 30 percent from August 6, 2020 for instability. The Board observes the Veteran has not yet appealed those determinations. It is unclear if the Veteran’s residuals of right tibia fracture no longer manifest as a disability of the ankle, or if they are now properly understood to be manifested as the right knee disability. Additionally, the August 2020 examiner did not address the Veteran’s past contentions of flare-ups. Therefore, upon remand, a new VA examination should be obtained to determine the nature and severity of the Veterans residuals of right tibia fracture. 4. Entitlement to a rating in excess of 10 percent prior to August 6, 2020, and 40 percent thereafter, for left lower extremity radiculopathy is remanded. The Veteran claims that he is entitled to increased disability ratings for his left lower extremity radiculopathy. He is in receipt of a 10 percent disability rating prior to August 6, 2020 and 40 percent thereafter. A March 2009 VA lumbar spine examination found that the pain was radiating to the Veteran’s left lower extremity. However, the examiner did not indicate the severity of the radiculopathy. The Veteran submitted private medicals from Dr. V.R. which documented “moderate” radiculopathy and symptoms of numbness, weakness, gait disturbance, paresthesias, and pain. See April 2013 private medical letter; see also, e.g. March 2012 private treatment records. A new VA lumbar spine examination was given in January 2016. While the examiner recorded mild numbness in the lower left extremity, he did not address any other symptoms from the private treatment records. The examiner described the Veteran’s left lower extremity radiculopathy as mild. In July 2016, the Veteran’s representative submitted a statement. The representative contended that the Veteran’s balance was impaired due to his left leg radiculopathy, and that he had continued to suffer from symptoms of numbness and pain throughout the period on appeal. Additionally, the statement suggested that the Veteran’s symptoms were alleviated somewhat by medication and that physical therapy had failed to improve the Veteran’s symptoms. This matter was remanded in June 2017 to afford the Veteran a new VA examination to determine the current severity of the Veteran’s left lower extremity radiculopathy. Upon remand this was not accomplished, so the Board once again remanded the matter in February 2020 in order to afford the Veteran a new VA examination. The Veteran was afforded such a VA examination in August 2020. The examiner recorded moderate numbness, intermittent pain, and paresthesias and/or dysesthesias. The Veteran also had decreased sensation in the upper anterior thigh, thigh/knee, lower let/ankle, and foot/toes. The report recorded antalgic gait. The examiner found incomplete paralysis of the left sciatic nerve characterized as moderately severe and incomplete paralysis of the external popliteal, characterized as moderate. Based upon the above findings, the Veteran was granted an increased rating of 40 percent for his left lower extremity radiculopathy, effective August 6, 2020, the day of the examination in an August 2020 rating decision. The Board finds that an addendum opinion is necessary to determine the severity of the Veteran’s left lower extremity radiculopathy for the period prior to August 6, 2020, as there is no adequate examination which addresses the Veteran’s symptoms during that time. 5. Entitlement to a combined schedular rating in excess of 90 percent is remanded. With regard to the Veteran's claim for entitlement to a combined schedular rating in excess of 90 percent, the Board finds that the claim is inextricably intertwined with the claims being remanded, as the outcomes of those claims will be pertinent to the Veteran's combined rating. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination(s) by an examiner(s) with sufficient expertise to determine the current level of severity of all impairment resulting from the Veteran's service-connected left ankle and residual right tibia disabilities. Any indicated studies should be performed. The examiner(s) should provide all information required for rating purposes, to specifically include both active and passive range of motion testing. The examiner(s) should also provide weight-bearing and non-weight bearing range of motion testing for the weight-bearing joints in question. If the examiner(s) is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner(s) should clearly explain why that is so. With regards to both the left ankle disability and the residuals of right tibia disability, the examiner is asked to address the Veteran’s reported flare ups as noted in the January 2016 VA examination. With regards to the residual right tibia disability, the examiner is asked to clarify if the Veteran’s residuals no longer manifest as a right ankle impairment. To the extent possible, the examiner should attempt to differentiate the symptoms of residuals of tibia fracture, and the Veteran’s separate service-connected right knee disability. The rationale for all opinions expressed must be provided. 2. Return the claims file and a copy of this remand to the August 2020 examiner (or if not reasonably available, to a suitable substitute examiner) for the purposes of obtaining a retrospective addendum opinion as to the severity of the Veteran’s left knee disability prior to August 6, 2020. For the period prior to August 6, 2020 the examiner should attempt provide all information required for rating purposes, to specifically include estimates of both active and passive range of motion testing. The examiner should also provide estimates of weight-bearing and non-weight bearing range of motion testing for the weight-bearing joints in question. If the examiner is unable to provide estimates, the examiner should clearly explain why. The examiner is asked to explicitly acknowledge the Veteran’s complaints of instability of the left knee for the period prior to August 6, 2020. To the extent possible, the examiner should describe the severity of any found instability for the relevant period. The rationale for all opinions expressed must be provided. 3. Return the claims file and a copy of this remand to the August 2020 examiner (or if not reasonably available, to a suitable substitute examiner) for the purposes of obtaining a retrospective addendum opinion as to the severity of the Veteran’s left lower extremity disability prior to August 6, 2020. The examiner should describe the severity of the Veteran’s left lower extremity disability for the period prior to August 6, 2020. In forming this opinion, the examiner is asked to consider the severity of the Veteran’s condition without the ameliorating effects of medication. The examiner is asked to address the Veteran’s contentions that he suffered from impaired balance, numbness, and pain throughout the period prior to August 6, 2020. Additionally, the examiner should acknowledge the private treatment records which appear to show symptoms of numbness, weakness, gait disturbance, paresthesias, and pain. Finally, if necessary, the examiner should reconcile any findings with the letter from Dr. V.R describing the Veteran’s radiculopathy as “moderate.” The rationale for all opinions expressed must be provided. 4. Then, readjudicate the remaining issues on appeal, to include the inextricably intertwined issue of entitlement to a combined schedular rating in excess of 90 percent. If a decision is adverse to the Veteran, issue a supplemental statement of the case, allow appropriate time for response, and return the case to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.