Citation Nr: 21029298 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-30 711 DATE: May 13, 2021 REMANDED 1. A compensable rating for eustachian tube dysfunction is remanded. 2. Entitlement for a compensable rating for residuals of a left achilles tendon injury is remanded. 3. Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from October 2001 to December 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal of May 2010 and August 2011 Department of Veterans Affairs (VA) rating decisions. In August 2019, a videoconference hearing was held before the undersigned; a transcript is in the Veteran's record. In September 2019 the matters were remanded for additional development. The May 2010 rating decision granted service connection for postoperative residuals of a left Achilles tendon injury, rated 0 percent under Code 5099-5024. The disability has since been recharacterized several times. An October 2016 rating decision awarded service connection for left calf muscle atrophy group XI as secondary to the left Achilles tendon injury, rated 30 percent effective November 30, 2010. An August 2017 rating decision granted service connection for hammertoes (rated 0%, effective March 1, 2016) and pes planus (rated 30 percent under Code 5276 effective March 1, 2016) as secondary to the Achilles tendon injury. The August 2017 rating decision also recharacterized and re-rated the residuals of the left Achilles tendon injury with pes planus under Code 5276. A March 2017 rating decision proposed severance of service connection for the pes planus and hammertoe disabilities and a March 2021 rating decision implemented that proposal. The March 2021 corresponding codesheet notes the left Achilles is recharacterized to under Code 5099-5024 (0% from December 9, 2009 to March 1, 2016) and Code 5276-5311 (30 percent from March 1, 2016). [The matter of the propriety of the severance of service connection for pes planus and hammertoe is not before the Board at this time. The Veteran may appeal the Agency of Original Jurisdiction's (AOJ) determination by submitting a VA Form 10182 prior to March 29, 2022.] 1. Entitlement to compensable rating for eustachian tube dysfunction. The September 2019 Board remand ordered an ENT examination of the Veteran to assess the severity of his service-connected eustachian tube dysfunction and to specifically describe all symptoms in detail, noting the nature, frequency, and severity as well as their impact, if any, on occupational and daily activity functioning. A March 2019 VA treatment record notes reports of losing his balance on occasions. On January 2021 VA ear conditions examination, the Veteran reported loss of balance related to his ear, indicating that he loses his balance 3 to 4 times a month and has to catch himself. The examiner opined the Veteran does not have a current vestibular condition but did not address (discuss the significance of) the Veteran's reports of occasional dizziness and loss of balance. As eustachian tube dysfunction could potentially result in equilibrium problems and he is reporting dizziness, a more appropriate rating may be warranted under Code 6204, for peripheral vestibular disorders. The development completed has been less than fully responsive to the remand directives, and is inadequate for rating purposes, requiring corrective action. Stegall v. West, 22 Vet. App. 268 (1998). 2. Entitlement to a compensable rating for left Achilles tendon injury. As discussed above, the Veteran's left Achilles tendon injury has been recharacterized several times throughout the appeal. Most recently, a March 2021 rating decision severed service connection (and separate ratings) for pes planus and hammertoes and assigned a single 30 percent rating for left calf muscle atrophy group XI with left foot pes planus and hammertoes. While the matters of the propriety of the severance of service connection and the rating for muscle atrophy are not before the Board, the matter of possibility of a separate rating for residuals of the left Achilles tendon injury, as a separate and distinct disability entity, remains before the Board. The September 2019 Board remand ordered a new orthopedic examination to assess the current severity of the Veteran's residuals of a left Achilles tendon injury disability. A January 2021 examination scheduling request notes the AOJ amended its request to a foot examination rather than an ankle examination. On January 2021 VA foot examination, the examiner noted the left Achilles tendon injury allows for some degree of morbidity through reduced range of motion. An updated VA ankle examination was not completed. As his last VA examination to assess his ankle was in August 2016 and the separate rating for the foot was severed during the pendency of the appeal, a contemporaneous examination to assess the severity of the left Achilles tendon disability, specifically as it relates to his ankle, is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 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). The left Achilles tendon disability picture suggests some reduced range of motion of the ankle, which would involve application of Code 5271. Code 5271 has been updated in the new rating criteria, and the record does not contain sufficient evidence to rate the disability under the new rating criteria, another examination is needed. 3. Entitlement to a rating in excess of 10 percent for a lumbar spine disability. The September 2019 Board remand ordered a new VA examination to assess the severity of his back disability specifically addressing whether there is related disc disease (if so, whether there have been incapacitating episodes) and the additional functional loss during flare-ups (as required under Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017)). On January 2020 VA examination, chronic lumbosacral strain, degenerative arthritis of the spine, and intervertebral disc syndrome (IVDS) were diagnosed. The examiner opined (without rationale) that IVDS is separate and unrelated to his service-connected lumbar spine disability. The examiner opined there was additional loss of function or range of motion after three repetitions; however, she found range of motion on repetition was better than or equal to the initial range of motion findings. The examiner opined (without rationale) that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The AOJ noted these inconsistencies and inadequate rationale and requested clarification from the examiner. In an August 2020 addendum opinion, the January 2020 examiner appeared to comment on the Veteran's gait rather than the noted inconsistencies and lack of rationale. The AOJ again requested clarification, noting the addendum opinion received August 2020 was nonresponsive to their request. In a September 2020 addendum opinion, the January 2020 examiner re-stated what she reported in the January 2020 VA examination. She did not provide any additional clarification regarding the inconsistencies concerning the additional loss of function or range of motion after three repetitions and the observed ROM findings, or a rationale why the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The opinion is not responsive to the Board's remand directives, and corrective action is necessary. See Stegall, 22 Vet. App. at 271. The Board is aware of the difficulty in providing an opinion [here, regarding severity of repetitive use over time] that in part requires some speculation, particularly when the Veteran is not being examined after repetitive use over time. Nonetheless, to comply with governing legal guidelines a medical opinion that addresses the degree of severity of the back disability is necessary. The matters are REMANDED for the following: 1. Review the appropriateness of characterization and Codes listed in codesheets for consistency with rating narratives, to specifically include those for the muscle atrophy disability and regarding a separate left Achilles tendon injury. 2. Arrange for the Veteran to be examined by an appropriate clinician (in ENT) to assess the severity of his service-connected eustachian tube dysfunction and to confirm whether he has a vestibular disability related to his eustachian tube dysfunction. The Veteran's record must be reviewed by the examiner and any indicated tests or studies should be completed. The examiner should provide responses to the following: (a.) Does the Veteran have a current chronic vestibular disability (found on examination or as shown by the record during the pendency of the claim)? If so, identify is by diagnosis. The examiner must expressly indicate whether the Veteran's own descriptions of his loss of balance and dizziness may be relied upon to form a conclusion, and if not, why not. (b.) Identify the likely etiology for any vestibular disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that it is related to his eustachian tube dysfunction? (c.) Note all manifestations of the Eustachian tube dysfunction. Describe all related symptoms in detail, noting the nature, frequency, and severity as well as their impact, if any, on occupational and daily activity functioning. All opinions must contain rationale. 3. Arrange for a VA spine examination to assess the severity of the Veteran's back disability, and reconcile the conflicting examination reports, cited above, regarding whether he has additional functional loss or range of motion on repetitive use, and if so to ascertain the additional functional impairment that occurs on repetitive use. The entire record must be reviewed by the consulting provider. On examination and review of his record, the examiner should (a.) Furnish a current and a retrospective opinion(s) regarding the functional loss from the Veteran's service-connected back disability that occurs when the back is used repeatedly over a period of time. The determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use. If such cannot feasibly be described, or if an estimate of the additional impairment on repetitive use cannot be provided based on the Veteran's reports and what is shown by clinical data in the record, there must be a full explanation why that is so. (b.) Indicate whether the service-connected lumbar spine disability includes IVDS, and if so, whether the Veteran has had incapacitating episodes of IVDS (periods of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician)? If so, state the frequency and duration of such episodes. If IVDS is determined to be unrelated to the service-connected back disability, explain why that is so. If an opinion requested cannot be provided "without resort to mere speculation" there must be explanation why that is so. The examiner must expressly indicate whether the Veteran's own descriptions of his functional impairment with repetitive use may be relied upon to form a conclusion, and if not, why not. All opinions must contain rationale. 4. Arrange for a VA orthopedic examination of the ankle, to assess the severity of the Veteran's left Achilles tendon disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed, and all pertinent findings should be reported in detail. On examination of the Veteran and review of his record, the examiner should: Describe in detail the symptoms and impairment of function associated with the Veteran's left Achilles (ankle) disability. Studies conducted should include for ranges of motion of the ankle, to specifically include testing for pain on both active and passive motion, and in weight-bearing and non-weight bearing. The examiner should note whether the ankle is ankylosed (and if so, the position of ankylosis). If any testing necessary cannot be completed, the examiner should explain why that is so. The examiner should note whether or not the findings are affected by such factors as pain, use, periods of exacerbation, etc., and opine regarding any additional degree of disability resulting from such factors. The examiner should comment on the nature and degree of occupational and daily activity functional impairment that is due to the disability The examiner must review the rating criteria under 38 C.F.R. § 3.71a prior to February 7, 2021 and the new revised rating criteria effective February 7, 2021. All opinions must include rationale GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.