Citation Nr: 21029724 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 18-38 484 DATE: May 14, 2021 ORDER Entitlement to a rating in excess of 20 percent for residuals of a right ankle fracture (a right ankle disability) is denied. REMANDED Entitlement to service connection for a left knee disability (diagnosed as left knee patellofemoral pain syndrome (PFPS)) is remanded. FINDINGS OF FACT Because of his right ankle disability, the Veteran has marked limitation of motion of this ankle when considering his pain and consequent functional loss; but at no time has there been ankylosis or deformity of this ankle or an exceptional or unusual disability picture to render impractical the application of the regular Rating Schedule standards. CONCLUSION OF LAW The criteria are not met for entitlement to a rating higher than 20 percent for the right ankle disability, including on an extra-schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC/Code) 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1969 to June 1971. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ). The Veteran testified in support of these claims during a recent February 2021 hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. The Board held the record open for an additional 30 days following the hearing to allow the Veteran time to obtain and submit supporting medical evidence including especially records of his treatment from Community Care Services and a medical nexus opinion. As an initial matter, the Board will address the Veteran's representative's apparent claim of entitlement to service connection additionally for right foot drop due to peripheral neuropathy, as arose for the first time during the February 2021 hearing. The Veteran testified to difficulties lifting and moving his right foot, which the representative then attributed to peripheral neuropathy and purported indication that the Veteran's right ankle disability is getting worse. But, while it is true that the Board has an obligation to liberally construe claims, the Board does not have jurisdiction to consider a claim, or in this instance expand an increased rating claim, to include a claim for service connection for another disability that was never presented to and adjudicated by the RO. See Jarrell v. Nicholson, 20 Vet. App. 326, 331 (2006); citing Godfrey v. Brown, 7 Vet. App. 398 (1995). If the Board were to preemptively adjudicate, and deny, such a claim, this would be prejudicial to the Veteran since he would lose one level of review of the claim ("one bite of the apple"). The Veteran, or his representative, may file a supplemental claim for service connection for peripheral neuropathy or for a right foot disability and show why it, too, is the result of the Veteran's military service and, therefore, warranting additional compensation. However, in the meantime, no further consideration regarding service connection for foot drop, a right foot disability, or peripheral neuropathy is warranted. Entitlement to a rating in excess of 20 percent for the right ankle disability Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When assessing the severity of a service-connected disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran filed his claim for an increased rating for his right ankle disability on September 25, 2015, so the period under review in deciding whether a higher rating is warranted is from one year earlier meaning since September 25, 2014. Harper v. Brown, 10 Vet. App. 125 (1997); see also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year "grace period" for filing a claim following an increase in severity of a service-connected disability). In his recent hearing testimony and pleadings, the Veteran contends that his right ankle disability warrants a rating higher than 20 percent because it is now more painful, also because he has swelling at least twice weekly, but depending on how much he walks on it (i.e., the more he walks on it, the more it swells), and since it is very hard to move, so has limited motion. However, regarding the latter, it is first worth pointing out that the Veteran already has the maximum permissible schedular rating under DC 5271 for limited motion of the ankle; indeed, according to this code, in assigning his existing 20 percent rating it is readily conceded that he has "marked" (as opposed to just "moderate") limitation of motion of this ankle. Further, his pain and consequent markedly limited motion of this ankle, therefore, already are expressly contemplated in his 20 percent rating under DC 5271. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In some circumstances, VA must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, and 4.59. However, this rule does not apply when, as here, the Veteran already has the maximum permissible schedular rating based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Moreover, during his hearing, the Veteran readily admitted that his right ankle motion is not so restricted to the point of concluding he has ankylosis; he conceded this ankle is not completely frozen, fixated or immobile thus, not ankylosed. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. This resultantly means that DC 5270, for ankylosis of the ankle, does not apply, even though it provides for higher 30 and 40 percent ratings. In the same vein, there also is not the subastragalar or tarsal joint ankylosis contemplated by DC 5272 or malunion of the Os calcis or astragalus contemplated by DC 5273 or the astragalectomy contemplated by DC 5274 since the Veteran indicated during his hearing that he has not had any right ankle surgeries. Still further, the holdings in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016), are not for application because those decisions pertain to the adequacy of examinations as they relate to range of motion findings, but range of motion findings are not determinative here because, as explained, they cannot result in any higher schedular rating. Although not expressly included in the Veteran's current rating, per se, or in the descriptive wording characterizing the nature and extent of his right ankle disability, treatment notes from October 2015 show chronic changes attributable to osteoarthritis in his right ankle. DC 5003 concerns degenerative arthritis (so including osteoarthritis), but also indicates to rate the arthritis based on the extent it causes limitation of motion of the specific joint involved or affected. Here, this invokes DC 5271 under which, as mentioned, the Veteran already has the highest permissible schedular rating of 20 percent for marked limitation of motion. Moreover, at most a 20 percent rating is warranted under DC 5003, so the rating he already has, and there cannot be separate ratings under DC 5003 and DC 5271. This prohibition is expressly indicated in DC 5003 and, in any event, would contravene VA's anti-pyramiding regulation 38 C.F.R. § 4.14. See also Esteban v. Brown, 6 Vet. App. 259 (1994). During his hearing, the Veteran also testified that he has "floaters" (foreign bodies) near the talus bone in his ankle. His medical records include a February 2016 radiology report noting a loose body adjacent to the talofibular ligament, identified as possible scar tissue. But his treatment notes and the report of his December 2015 VA examination do not reflect any further diagnosis or additional disability, including in the way of consequent functional loss. Lastly, the Veteran also does not have an exceptional or unusual disability picture rendering impractical application of the regular Rating Schedule standards to, in turn, warrant referring this claim for extra-schedular consideration under the special provisions of 38 C.F.R. § 3.321(b)(1). Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As already discussed, his chronic pain and even his resultant need to take pain medication is contemplated by his existing 20 percent rating inasmuch as this rating already accounts for the effect of his pain on his range of motion. In deciding this appeal, the Board additionally has considered the Veteran's lay statements offered in support of his claim, as well as his wife's supporting lay testimony during the recent hearing and his children's written statements to VA. They are competent to report observations about the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). And the Board finds their lay statements and hearing testimony to be credible but also commensurate with the existing rating. Accordingly, the preponderance of the evidence is against a rating higher than 20 percent for the Veteran's right ankle disability. And, as the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply, and his claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Entitlement to service connection for left knee disability (diagnosed as PFPS) is remanded The primary basis of this other claim is that the Veteran's left knee disability is secondary to, meaning caused or aggravated by, his already determined to be service-connected disabilities especially his right ankle and right hip disabilities. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). He credibly testified during his recent hearing that his right ankle and hip disabilities result in unequal weight distribution and consequent overcompensation on his left knee. He often uses a cane to walk, which he switches from hand to hand to relieve pain in his wrist and arm, again, resulting in overcompensation at the expense of his left knee. These circumstances, in turn, aggravate his left knee, causing pain and stiffness. Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The record reflects that the Veteran was diagnosed with left knee PFPS in 2015. In February 2008, so 7 years prior, he was also diagnosed with osteoarthritis of the knees. As such, a current disability is established. But, to warrant the granting of service connection, there also must be attribution of this left knee disability to his military service, either by showing it is directly attributable to his service, or that he had arthritis within a year of conclusion of his service to warrant presuming it was incurred during his service, or alternatively by showing his left knee disability is secondarily related to is service again, meaning caused or aggravated by his service-connected right knee and right hip disabilities, together or separately. The RO (AOJ) already has considered two VA medical opinions addressing this notion of secondary service connection. But neither the initial December 2015 medical opinion nor the more recent June 2018 medical opinion considered whether there is aggravation and, therefore, comment is still needed concerning this other possibility. El-Amin, 26 Vet. App. at 140 (holding that medical opinions addressing the issue of secondary service connection are inadequate when they fail to adequately encompass the question of aggravation). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA endeavors to provide an examination to obtain a medical opinion, even if not statutorily obligated to, it must provide an adequate examination and opinion, else, notify the claimant why they cannot or will not be provided). The Board sees the February 2021 statement by Ms. Hoyman, PA-C, who opined that the Veteran's left knee pain may be due to his cane use as the result of his right ankle disability or may otherwise be arthritis in this knee. However, saying something "may" be related to service (or, here, service-connected disability) is for all intents and purposes tantamount to also saying it just as well "may not" be related to service (or service-connected disability) and, thus, insufficient basis to grant service connection. See Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420 (1998). Accordingly, this claim is REMANDED for the following action: Obtain another addendum opinion regarding the etiology of the Veteran's left knee disability, including regarding both the origins of his PFPS and osteoarthritis. The claims file, including a complete copy of this decision and remand, must be made available to and reviewed by the examiner to assist in providing the specific information that is needed. To wit, the examiner is specifically asked to indicate: (a) Whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed left knee disability is directly related to the Veteran's service -including to the type of physical or strenuous activity he cites as a possible source or cause of this now claimed disability (e.g., lifting and carrying ammunition boxes). (b) Alternatively, is it at least as likely as not (50 percent or greater probability) that any currently diagnosed left knee disability is secondarily related to his service, meaning caused OR aggravated by his service-connected right ankle and/or right hip disabilities including especially from overcompensating. Rationale for the opinions is essential, regardless of whether favorable or unfavorable to the claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.