Citation Nr: 21030356 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-46 824 DATE: May 18, 2021 ORDER Entitlement to restoration of a 20 percent rating for right ankle tendonitis, with instability due to partial thickness posterior talofibular tear, for the period from July 13, 2019, is granted. Entitlement to a rating greater than 20 percent for right ankle tendonitis, with instability due to partial thickness posterior talofibular tear, for the period from December 9, 2015 to include on an extraschedular basis, is denied. REMANDED Entitlement to an initial evaluation in excess of 10 percent for right ankle tendonitis, with instability due to partial thickness posterior talofibular tear, for the period prior to December 9, 2015 to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The reduction of the Veteran's 20 percent rating under Diagnostic Code 5271 to a 10 percent rating under Diagnostic Code 5024 effective July 13, 2019 was improper. 2. From December 9, 2015, the Veteran's right ankle disability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle, and an extraschedular rating is not warranted. CONCLUSIONS OF LAW 1. The criteria for restoration of a 20 percent rating for a right ankle condition from July 13, 2019 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.71a Diagnostic Code 5271 (2020). 2. The criteria for a rating in excess of 20 percent for a right ankle condition from December 9, 2015 to include on an extraschedular basis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 2009 to November 2014. This matter originally came before the Board of Veterans' Appeals (Board) from a rating decision dated January 2015, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board adjudicated this appeal in a September 2019 decision, denying an increased evaluation for the issues on appeal herein. The Veteran appealed the Board's denial to the United States Court of Appeals for Veteran Claims (Court). In October 2020, the Court granted a joint motion for partial remand (JMPR) of the Veteran and the Secretary of Veterans Affairs and vacated the September 2019 Board decision insofar as it denied entitlement to an initial evaluation in excess of 10 percent for right ankle tendonitis, with instability due to partial thickness posterior talofibular tear, for the period prior to December 9, 2015 and entitlement to an evaluation in excess of 20 percent for right ankle tendonitis, with instability due to partial thickness posterior talofibular tear, for the period from December 9, 2015, and remanded the case to the Board for action consistent with the terms of the JPMR. The Court's remand confers on the Veteran a right to compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Forcier v. Nicholson, 19 Vet. pp. 414, 425 (2006). Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating greater than 20 percent for right ankle tendonitis, with instability due to partial thickness posterior talofibular tear, for the period from December 9, 2015, to include on an extraschedular basis. The Veteran contends that entitlement to a rating greater than 20 percent is warranted for right ankle tendonitis, with instability due to partial thickness posterior talofibular tear, for the period from December 9, 2015. During the pendency of this appeal, VA amended the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020), effective February 7, 2021. The Veteran's right ankle is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271, which provides the schedular evaluations for limitation of the motion of the ankle. Under Diagnostic Code 5271 for the period prior to February 7, 2021, for limited motion of ankle, moderate limited motion is rated 10 percent disabling and marked limited motion is rated 20 percent disabling, which is the maximum rating under the Diagnostic Code. 38 C.F.R. § 4.71a. Under Diagnostic Code 5271 (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271, February 7, 2021), for limited motion the ankle, moderate limited motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) is rated 10 percent disabling and marked limited motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) is rated 20 percent disabling, which is the maximum rating under the Diagnostic Code. 38 C.F.R. § 4.71a. The Board will apply the criteria most favorable to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Furthermore, for Diagnostic Codes 5270, and 5272 5274, which will be addressed below, there is no change in the diagnostic criteria under the new regulations. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020), effective February 7, 2021. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran submitted a Disability Benefits Questionnaire (DBQ) that was completed by a private physician in December 2015 as evidence, and, according to that DBQ, the Veteran reported symptoms including pain, stiffness, loss of motion and loss of strength. The examiner indicated a diagnosis of tendonitis and ankle stiffness, and he also noted that right ankle instability was suspected, but the examiner did not indicate that the Veteran had ankylosis of the right ankle. No crepitus was noted. The examiner reported that the Veteran's right ankle plantar flexion was limited to 25 degrees and that his right ankle dorsiflexion was limited to 0 degrees, which provided a basis for the increased 20 percent evaluation. The examiner noted that there was no change in range of motion after repetitive use testing. The examiner noted that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or when the joint is used repeatedly over a period of time. However, the examiner noted that it was not feasible to estimate range of motion. The Board observes that this examination was conducted prior to the decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017), that held that an examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or after repeated use will be considered inadequate. Thus, the December 2015 private DBQ is now inadequate. The Veteran was afforded another VA ankle conditions examination in January 2017, and the report of that examination indicates that the Veteran has or has had diagnoses of a right lateral collateral ligament sprain, right tendonitis, and right ankle instability due to partial thickness posterior talofibular tear. The Veteran did not report flare-ups of the ankle. Dorsiflexion was noted to be 0 to 10 degrees, and plantar flexion was noted to be 0 to 35 degrees. This examiner also noted that the Veteran had pain, loss of strength, and limited range of motion in/of his right ankle. The examiner indicated that there was crepitus in the ankle and clarified that the Veteran did not suffer from ankylosis of the ankle. The Board finds that the symptoms noted, including crepitus due to the ankle disability are contemplated by the current disability evaluation. Although, the Veteran only qualified for a 10 percent rating based solely on the limitation of motion, the RO granted a 20 percent evaluation considering pain, weakness, fatigability, or incoordination in a March 2017 rating decision, with an effective date of December 2015, when the private DBQ was completed. As noted above, a 20 percent rating is the maximum schedular evaluation based on limitation of motion warranted under DC 5271, and a higher rating would require the presence of ankylosis under DCs 5270 or 5272, of which there is none throughout the pendency of the claim. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The VA and private examination have documented that the Veteran did not have right ankle ankylosis. See December 2015 private DBQ; January 2017 VA examination. The regulations pertaining to functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59) do not provide a basis for any rating higher than 20 percent. Moreover, there is no evidence of any malunion of the os calcis or astragalus or any astragalectomy. Thus, no separate and/or higher ratings are warranted on the basis of any such impairment at any time during the claim period. See 38 C.F.R. § 4.71a, DCs 5273-5274. Rating greater than 10 percent from July 13, 2019 The record reveals that an October 2019 rating decision reduced the Veteran's 20 percent rating, and assigned a 10 percent rating effective July 13, 2019 (date of a new VA ankle examination), under Diagnostic Code 5024. Diagnostic Code 5024, states that diseases under Diagnostic Code 5024 will be rated on limitation of motion of the affected parts, as degenerative arthritis. Diagnostic Code 5003 rates degenerative arthritis and states that the severity of degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Diagnostic Code 5024 (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5024, February 7, 2021), was revised from "tenosynovitis" alone to include "tenosynovitis, tendinitis, tendinosis or tendinopathy," A review of the July 2019 VA examination shows that at worse, dorsiflexion was shown to be 0 to 20 and plantar flexion was 0 to 20. The examiner opined that tendonitis, tear and instability cause an increasing pressure on the while joint, including lateral collateral ligament, which are submitted to a remarkable stress and that it chronically causes pain and impairment in walking. The Board finds that the RO failed to consider the Veteran's additional symptoms. The RO also noted in the October 2019 rating decision that there was objective evidence of tenosynovitis. However, a review of the July 2019 VA examination does not note a diagnosis of tenosynovitis. Moreover, sustained improvement is not shown. Thus, the Board finds that the rating reduction effective July 13, 2019 was improper, and restoration of the 20 percent rating is appropriate under Diagnostic Code 5271, which is the Diagnostic Code most beneficial that would result in a higher rating. Extraschedular consideration from December 9, 2015 In order for a referral for extraschedular consideration, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability, and whether or not the Veteran's disability picture is adequately contemplated by the assigned rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Thun v. Peake, 22 Vet. App. 111, 115 (2008). In Long v. Wilkie, Vet. App. No. 16-1537 (2020), in order to facilitate proper analysis of Thun's first step, the Court provided six non-exhaustive or mandatory guiding principles. First, the sole focus of Thun's first step is on the ability of the rating schedule to evaluate the veteran's symptomatology; extraschedular consideration is not applicable to claims that may be properly evaluated with conventional schedular rating tools. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). Second, Thun's first step deals exclusively with whether the veteran's symptomsinterchangeably referred to by the Court as "functional impairments"are exceptional, whereas Thun's second step considers the functional effects of those symptoms. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Third, where a symptom or impairment is not compensable under the rating schedule, as is the case for psychiatric conditions without a valid DSM-5 diagnosis, see Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020), it also does not warrant extraschedular consideration as this would amount to a backdoor means to obtaining compensation for a condition the rating schedule intends to exclude. Fourth, extraschedular consideration is not warranted for symptoms or effects that lack a nexus to service or to a service-connected disability. Fifth, the Board is only required to discuss the theories of entitlement raised by the veteran or reasonably raised by the record. Sixth, in reviewing the Board's analysis of referral for extraschedular consideration, the Court will be mindful of the rule against prejudicial error. Thus, a failure of the Board to discuss whether extraschedular consideration is warranted for a particular symptom does not require an automatic remand. Here, the Veteran's ankle disability manifested by right ankle pain, stiffness, loss of motion, weakness, instability, and crepitus. The RO granted a higher disability rating of 20 percent considering additional symptoms in addition to the noted range of motion during medical examinations. Furthermore, the Board has revised and restored the RO's rating reduction from 10 percent to 20 percent from July 2019, considering the Veteran's additional symptoms. Based on the level of severity and symptomatology of the Veteran's right ankle condition and the established criteria found in the rating schedule as a whole, the Board observes that the Veteran's disability picture is adequately contemplated by the rating schedule and any functional impairment is not shown to be exceptional in nature. Thus, a referral for an extraschedular rating is not warranted. See Thun, supra; Morgan, supra; Long, supra. In adjudicating a claim, the competence and credibility of the Veteran and other lay persons must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran is competent to present as evidence what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's statements have been considered and the Board finds that the statements are outweighed by the clinical findings of record. The Board assigns greater probative value to the clinical findings in the VA examination reports and clinical records that were recorded following physical examinations of the Veteran, based on the medical expertise of the examining physicians. These are more probative than the Veteran's assertions requesting a higher rating. There is no indication that the Veteran has the requisite medical expertise or knowledge to determine the severity of his ankle condition, pursuant to Diagnostic Code criteria, which has not been shown by the clinical evidence of record. Thus, the Veteran's lay assertions regarding severity of his ankle condition not competent, nor credible. Accordingly, a higher rating during the period on appeal is not warranted. For the foregoing reasons, entitlement to a rating greater than 20 percent from December 9, 2015 is not warranted. As the preponderance of the evidence is against a higher disability rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 2. Entitlement to an initial evaluation in excess of 10 percent for right ankle tendonitis, with instability due to partial thickness posterior talofibular tear, for the period prior to December 9, 2015 to include on an extraschedular basis, is remanded. The Veteran contends that entitlement to an initial evaluation in excess of 10 percent for right ankle tendonitis, with instability due to partial thickness posterior talofibular tear, is warranted for the period prior to December 9, 2015. According to the terms of the JMPR, the parties agreed that the Board relied on an inadequate VA examination to evaluate the Veteran's ankle disability prior to December 9, 2015. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Specifically, it was observed that the 2014 VA examination relied upon by the Board did not include range-of-motion test results for pain on active and passive motion, or in weight-bearing and non-weight bearing modes. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158, 168-170 (2016). A remand is required for the Board to obtain a retrospective opinion and include the Veteran's range of motion testing results based on the evidence of record for pain on active and passive motion, or in weight-bearing and non-weight bearing modes. Extraschedular consideration prior to December 9, 2015 The Board finds that the Veteran's claim for entitlement to an extraschedular disability rating for his right ankle condition prior to December 9, 2015 is inextricably intertwined with the remanded issue herein for a retrospective VA examination prior to December 9, 2015. On remand, the AOJ should complete the relevant development in regard to obtaining a retrospective VA ankle examination and consider whether referral for extraschedular consideration to the Director of Compensation Service is warranted in regard to the Veteran's ankle disability prior to December 9, 2015. Accordingly, the matter is REMANDED for the following actions: 1. Obtain an addendum opinion by an appropriate clinician to determine the retrospective initial severity of the Veteran's service-connected right ankle condition prior to December 9, 2015. The examiner must review the evidence of record, including this Remand and the Court's Remand prior to conducting the examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, including the range of motion based on the evidence of record. In so doing, the examiner must note the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal, including the inextricably intertwined issue of an extraschedular consideration prior to December 9, 2015. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Khan, 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.