Citation Nr: 21023596 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-23 854 DATE: April 21, 2021 ORDER An initial rating in excess of 10 percent for right ankle strain is denied. REMANDED Entitlement to service connection for headaches, to include as secondary to tinnitus, is remanded. FINDING OF FACT The Veteran’s right ankle strain has manifested by no more than moderate limitation of motion; marked limitation of motion has not been shown. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for right ankle strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71A, Diagnostic Code (DC) 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1991 to November 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2009 and January 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Board remanded the matters for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial rating in excess of 10 percent for right ankle strain The Veteran contends he is entitled to an increased initial rating for right ankle strain. In an April 2020 rating decision, the RO assigned an initial rating of 10 percent due to painful motion of the ankle, effective April 28, 2009. The Veteran’s right ankle disability has been rated under 38 C.F.R. § 4.71a, DC 5271. Effective February 7, 2021, under DC 5271, a 10 percent rating is warranted for moderate limited motion of use of the ankle, which is defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A 20 percent rating is warranted for marked limited motion of use of the ankle, which is defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Prior to February 7, 2021, under DC 5271, a 10 percent rating was warranted for moderate limited motion of use of the ankle and a 20 percent rating was warranted for marked limited motion of use. Prior to February 7, 2021, the words “moderate” and “marked” were not defined in the VA Rating Schedule. Thus, for the period on appeal prior to February 7, 2021, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. However, VA’s Adjudication Procedures Manual provides guidance on the matter. Specifically, the manual states that an example of moderate limitation of ankle motion is when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while an example of marked limitation of ankle motion is when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VA Adjudication Procedures Manual, M21-1, III.iv.4.A.6.m (April 13, 2018). Although the Board is not bound by the VA Adjudication Manual, it provides useful guidance. See DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals.”). Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. If a law or regulation changes during the course of 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the Board finds that both the old and new criteria under DC 5271 are fundamentally identical, given that the guidance of VA’s Adjudication Procedures Manual was adopted as explicit rating criteria in February 2021. Turning to the evidence, the Veteran underwent a VA ankle examination in January 2012 during which the examiner diagnosed the Veteran with a sprain of the right ankle. The examiner noted right ankle plantar flexion of 45 degrees or greater and right ankle dorsiflexion of 20 degrees or greater for both initial range of motion testing and after repetitive use. The examiner noted that the Veteran did not have localized tenderness or pain on palpation of the joints or soft tissue of either ankle and that there was no ankylosis of either ankle. Symptoms such as weakness, incoordination, or fatigability were unreported, and functional impact to the Veteran’s ability to work was denied. In April 2014, the Veteran underwent another VA ankle examination in which the examiner diagnosed the Veteran with a chronic sprain of the right ankle. The examiner noted right ankle plantar flexion of 45 degrees or greater and right ankle dorsiflexion of 20 degrees or greater for both initial range of motion testing and after repetitive use. However, the examiner noted that the Veteran had either localized tenderness or pain on palpation of the right ankle. The examiner stated that the Veteran did not have ankylosis of the ankle, and functional loss or impairment was denied. The examiner also denied that symptoms such as pain, weakness, fatigability, or incoordination would significantly limit functional ability during flare-ups or with repetitive use. In September 2015, the Veteran underwent another VA ankle examination in which the examiner diagnosed him with a sprain of the right ankle. Regarding initial range of motion testing, the examiner noted dorsiflexion from 0 to 15 degrees and plantar flexion from 0 to 40 degrees of the right ankle. Regarding observed repetitive use, the examiner noted dorsiflexion of 0 to 10 degrees and plantar flexion of 0 to 40 degrees of the right ankle. The examiner noted that there was no ankylosis of either ankle. However, the examiner noted pain with palpation of the right ankle. Pain on weight-bearing was denied, but instability was reported. With respect to functional impairment, the Veteran reported right ankle pain if he has been sitting for prolonged periods of time and then stands up. In April 2020, the Veteran submitted a statement detailing the symptoms of his right ankle disability. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He endorsed pain, limited movement, swelling, looseness, weakness, muscle fatigue, and cracking and popping noises in his right ankle. He further noted worsening pain with prolonged standing or walking, going up and down stairs, squatting, making quick side-to-side movements, or when walking on uneven surfaces. In April 2020, the Veteran also submitted a private evaluation for right ankle strain by G.U., a nurse practitioner. The examiner cited to the Veteran’s April 2020 statement, noted above, and opined that the Veteran’s right ankle condition most closely approximates a rating of 10 percent due to painful motion. However, independent evaluation was not conducted at that time. In January 2021, the Veteran underwent another VA ankle examination. The examiner diagnosed the Veteran with right ankle sprain. Regarding initial range of motion testing, the examiner noted dorsiflexion of 0 to 15 degrees and plantar flexion from 0 to 40 degrees of the right ankle. There was no objective evidence of localized tenderness of pain on palpation. The examiner further found that there was no additional loss of function or range of motion after three repetitions. The examiner noted that the Veteran did not have ankylosis of the right ankle. Pain was noted on examination and was said to contribute to functional loss. There was also evidence of pain with weight-bearing and nonweight-bearing, without additional loss of motion. However, symptoms of weakness, fatigability, and incoordination were not said to cause functional loss. As such, the Veteran reported that ambulating was limited to 15 minutes. The Veteran’s VA and private treatment records do not deviate from the above findings to any notable degree. Collectively, this evidence speaks to the Veteran’s chronic right ankle pain with intermittent instability. Based on the above, the Veteran’s right ankle disability did not more nearly approximate “marked” limitation at any point during the period under review. For the period beginning February 7, 2021, there is no evidence of record indicating that the Veteran’s right ankle dorsiflexion was less than 5 degrees or plantar flexion was less than 10 degrees, even with the presence of pain, repetitive use, or in weight-bearing. There is also no evidence of record prior to February 7, 2021, showing such measurements, as outlined in VA’s Adjudication Procedures Manual. Prior to February 7, 2021, there is still insufficient evidence showing that the Veteran experienced “marked” limitation of motion of the right ankle, based on the Board’s equitable and just evaluation of the collective evidence. As noted above, the Veteran has undergone multiple VA ankle examinations. The September 2015 examination is the first examination of record showing that the Veteran’s right ankle range of motion was less than the normal ankle range of motion found in 38 C.F.R. § 4.71, Plate II. The January 2021 measurements also noted measurements less than those found in Plate II. However, neither the September 2015 nor the January 2021 measurements reflect a significant reduction from the “normal” values found in Plate II, particularly that indicative of a marked disability. In addition, the Veteran’s private examiner, G.U., opined that the Veteran’s right ankle condition closely approximates a rating of 10 percent disabling, as currently assigned. No other factors contributed to additional functional limitation that would justify an increased rating. As such, the Board cannot find that his symptoms more nearly approximated “marked” limitation of motion. The Board further notes that there is no evidentiary basis for an increased rating under DC 5270 (for ankle ankylosis) or DC 5272 (for ankylosis of the subastragalar or tarsal joint) because the evidence does not demonstrate ankylosis or ankylosis of the subastragalar or tarsal joint for the Veteran’s right ankle. Also, as the record does not indicate that the Veteran has undergone an astragalectomy, a higher rating is not warranted under DC 5274. Furthermore, because the evidence does not demonstrate malunion of the os calcis or astragalus, a higher rating under DC 5273 is not warranted. The Board has also considered DCs 5276, 5277, 5278, and 5283, which concern disabilities of the foot and provide for ratings higher than 10 percent. However, since the Veteran’s right ankle disability was not shown by the medical evidence to manifest flatfoot, weak foot, claw foot, malunion, or nonunion of the tarsal or metatarsal bones, those DCs are not applicable. The Board has considered the Veteran’s lay statements regarding the functional impact of his service-connected right ankle disability. His complaints of pain and functional limitations are consistent with the currently assigned 10 percent rating, which contemplate “moderate” limitation of motion. Indeed, the currently assigned 10 percent rating was granted with consideration of the functional loss stemming from the Veteran’s functional impairment, as painful motion of a joint equates to limited motion. Notably, additional symptoms of weakness, incoordination, and fatigability are largely absent from the record, to include following repetitive use or with weight-bearing. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 208 (1995). In sum, the effects of the Veteran’s right ankle disability did not more nearly approximate “marked” limitation of motion at any point during the appeal period. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the record). Unfortunately, his claim for an increased initial rating must be denied. The preponderance of the evidence is against the appeal, such that the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). [CONTINUED ON NEXT PAGE] REASONS FOR REMAND 1. Entitlement to service connection for headaches, to include as secondary to tinnitus, is remanded. In November 2020, the Board remanded the issue of entitlement to service connection for headaches in order to obtain an addendum medical opinion for a direct service connection theory of entitlement. In November 2020, after the Board remand, a VA examiner opined that it was less likely than not that the Veteran’s headache condition was related to service. Regarding rationale, the examiner stated that there was a lack of in-service treatment records indicating a headache or migraine condition. However, the Veteran’s service treatment records do indicate that he experienced headaches during service. In March 1992, the Veteran reported to the urgent care clinic with complaints of a headache. See Oct. 2011 STR – Medical #2, p. 8. In September 1993, he again reported that he experienced a headache. See Oct. 2011 STR – Medical #1, p. 6. The Board finds that the November 2020 examiner’s failure to address the Veteran’s in-service reports of headaches renders the examination inadequate for adjudication purposes. Accordingly, the claim must be remanded in order to obtain an adequate examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: Schedule the Veteran for an examination that addresses the nature and etiology of his headache condition. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report must include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion and a supporting rationale that address the following: (a.) Identify all diagnoses that pertain to the Veteran’s headache condition. If the examiner opines that the Veteran does not have a headache disability, the examiner must fully explain why the Veteran’s complaints do not rise to the level of a diagnosable condition. (b.) For any diagnoses, is it at least likely as not (a 50 percent probability or greater) that such disability was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service? In providing the opinion, the examiner must address the Veteran’s in-service reports of headaches. See Oct. 2011 STR – Medical #1, p. 6; Oct. 2011 STR – Medical #2, p. 8. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. The examiner must provide rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, 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.