Citation Nr: 21031474 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 12-28 423 DATE: May 22, 2021 ORDER Entitlement to service connection for a bilateral eye disability is denied. Entitlement to a rating in excess of 20 percent for left elbow osteoarthritis is denied. Entitlement to a rating in excess of 10 percent for right ankle osteoarthritis is denied. FINDINGS OF FACT 1. A bilateral eye disability did not have its onset in service and is not otherwise related to service. 2. Even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, his left elbow was manifested by no more than flexion limited to 60 degrees. 3. Even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, his right ankle was manifested by no more than moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 20 percent for left elbow osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5206. 3. The criteria for a rating in excess of 10 percent for right ankle osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1971 to June 1977, and from September 1986 to September 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a February 2016 video-conference hearing. These matters were previously before the Board in April 2016, July 2019 and October 2020 when they were remanded for additional development. 1. Entitlement to service connection for a bilateral eye disability. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has current diagnoses of bilateral optic atrophy with bilateral visual field loss and bilateral cataracts. See November 2018 VA eye conditions examination. The Veteran seeks service connection for a bilateral eye disability, to include as secondary to "heat stroke" during service. See Id. The Veteran's service treatment records include a September 1972 report noting his complaint of a dimming of vision in his right eye for about 13 months, occurring usually when he changes the illumination he is working in. No loss of visual acuity had been noted. The impression provided was psychogenic. The Veteran's service treatment records are otherwise silent for any complaints, findings, or reports regarding the eyes. See July 1989 separation report of medical examination; see also July 1989 separation report of medical history (denying any eye trouble). After a review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim seeking service connection for a bilateral eye disability. To the extent the Veteran contends that his diagnosed eye disabilities should be service connected based on a recurrence of symptomatology since service or otherwise directly related to service, the Board notes that there were no complaints or treatment regarding eye impairment other than the above-noted September 1972 treatment record. Furthermore, there is no evidence of any eye disability until 2004, approximately 15 years after service. In addition, in a November 2018 VA eye conditions examination, it was opined that the Veteran's claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event or illness. It was indicated that it was not possible to determine whether the Veteran's bilateral cataracts are related to service as there is no known date of onset or etiology of the cataracts. The examiner further stated that the American Academy of Ophthalmology indicates that cataracts of the type the veteran has can be steady for an extended period of time and then rapidly progress to mature cataracts, as appears to be the case for the veteran. Therefore, it was not possible to determine when the cataracts began to develop. Regarding the diagnosis of bilateral optic atrophy, it was noted the Veteran's optic atrophy is so severe with the visual field loss that it is possible that the cumulative effect of multiple episodes of heat stroke have influenced the development of optic atrophy, but optic atrophy was not noted until 2016, and thus no in-service date can be applied to the onset. In a July 2020 VA opinion, it was also opined that the claimed eye conditions were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner expressed agreement with the above-noted November 2018 VA opinion, noting the Veteran's service treatment records were silent for documentation reflective of any cataracts, optic atrophy or visual defects both in or within one year of separation. Based on this medical evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran's bilateral eye disability is directly related to service. The only competent medical opinions are that of the November 2018 and July 2020 VA examiners which are against the Veteran's claim. The opinions were based on a review of the record. Therefore, the Board finds these opinions, cumulatively to be persuasive, and entitlement to service connection for a bilateral eye disability on a theory of being directly related to service or recurrence of symptomatology is denied. The weight of the competent medical evidence demonstrates that the Veteran's bilateral eye disabilities are not related to his active service. The Board thus finds that the preponderance of the evidence is against his claim for service connection. Inasmuch as the Veteran has not established service connection for heat stroke, a threshold legal requirement for establishing secondary service connection is not met, i.e., it is not shown that the primary disability (heat stroke) alleged to have caused or aggravated the disabilities for which secondary service connection is sought (bilateral eye disability) is service-connected. Accordingly, secondary service connection is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453, 76,464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. 2. Entitlement to a rating in excess of 20 percent for left elbow osteoarthritis. The Veteran contends he is entitled to a rating in excess of 20 percent for his service-connected left elbow osteoarthritis. The Veteran's left elbow is rated under Diagnostic Codes 5010-5206. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. Diagnostic Code 5010 provides that traumatic arthritis, when substantiated by X-ray findings, is to be evaluated under Diagnostic Code 5003 as degenerative or osteoarthritis, which in turn indicates the disability will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. 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. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). The Veteran's left elbow disability is currently rated under Diagnostic Code 5010-5206, which was not revised, but other Diagnostic Codes must be considered, if applicable. The Board has also considered whether a rating in excess of 20 percent is warranted under another diagnostic code for the elbow and forearm, and finds that no other diagnostic code is applicable to the Veteran's presentation and symptomatology because he has no joint fracture or deformity, and no nonunion or malunion of the radius or ulna. Under Diagnostic Code 5206, for the minor (nondominant) extremity, flexion limited to 90 degrees warrants a 20 percent rating. Flexion to 70 degrees warrants a 20 percent rating. Flexion to 55 degrees warrants a 30 percent rating. Flexion limited to 45 degrees warrants a 40 percent rating. Inasmuch as the Veteran's left elbow is on his nondominant side, the Board will discuss the findings pertaining to the minor elbow and forearm. Full elbow extension and flexion is from 0 to 145 degrees, full pronation is to 80 degrees, and full supination is to 85 degrees. 38 C.F.R. § 4.71, Plate I. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a finding the Veteran's left elbow disability warrants a rating in excess of 20 percent at any time during the appeal period. The Veteran was afforded VA examinations to evaluate his left elbow disability in May 2012, April 2018, February 2019 and December 2019. Physical examination revealed flexion to at worst 135 degrees even with consideration of pain on range of motion, after repetitive range of testing, and based on his statements as to the functional impact on flare-ups. There is no evidence of muscle atrophy, or ankylosis, or ankle instability or dislocation suspected, and no objective evidence of crepitus. There was no evidence of pain on non-weight bearing testing. Additionally, there was no evidence of pain in passive range of motion testing. There was no evidence the Veteran requires the use of an assistive device for his left elbow disability. Based on the VA medical examinations afforded to the Veteran, the probative evidence of record does not show, or approximate, limitation of flexion of the left elbow to 55 degrees at any point during the appeal. The Board finds that the Veteran's left elbow disability did not more closely approximate the criteria for a 30 percent rating under Diagnostic Code 5206, even considering pain and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45. With regard to other potentially applicable diagnostic codes, the Veteran's limitation was not more closely described as ankylosis or less than 55 degrees of flexion. As he is able to move his elbow, by definition he does not have ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable); see also Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). The Board finds that the most probative evidence of record does not support the Veteran's left elbow disability warrants a rating in excess of 20 percent. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a rating in excess of 10 percent for right ankle osteoarthritis. The Veteran contends he is entitled to a rating in excess of 10 percent for his service-connected right ankle osteoarthritis. The Veteran's right ankle is rated under Diagnostic Codes 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. Under the former VA regulations, under 38 C.F.R. § 4.71a, Diagnostic Code 5271 provides a 10 percent rating for moderate ankle limitation of motion and a 20 percent rating for marked ankle limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal ranges of motion of the ankle are dorsiflexion from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2016); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The minimum compensable rating has been assigned in this case. The words "moderate" and "marked" as used in the various Diagnostic Codes were not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "marked" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Pursuant to the revised regulations, effective February 7, 2021, under 38 C.F.R. § 4.71a, Diagnostic Code 5271 now clarifies that a 20 percent rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) and a 10 percent rating is warranted for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). No further changes were made to Diagnostic Codes 5270, 5272, 5273, or 5274 under the revised regulations. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a finding the Veteran's right ankle disability warrants a rating in excess of 10 percent at any time during the appeal period. The Veteran was afforded VA examinations to evaluate his right ankle disability in May 2012, April 2018, February 2019 and December 2019. Physical examination revealed dorsiflexion to at worst 15 degrees and plantar flexion to at worst 35 degrees, even with consideration of pain on range of motion, after repetitive range of testing, and based on his statements as to the functional impact on flare-ups. There is no evidence of muscle atrophy, ankylosis, or ankle instability or dislocation suspected, and no objective evidence of localized tenderness or pain on palpation. There was no evidence of pain on weight or non-weight bearing and no objective evidence of crepitus. Additionally, there was no evidence of pain in passive range of motion testing. There was no evidence the Veteran requires the use of an assistive device for his right ankle disability. Based on the VA medical examinations afforded to the Veteran, the probative evidence of record does not show marked limitation of motion of the right ankle at any point during the appeal. The Board finds that the Veteran's right ankle disability did not more closely approximate the criteria for a 20 percent rating under Diagnostic Code 5271, even considering pain and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45. With regard to other potentially applicable diagnostic codes, the Veteran's limitation was not more closely described as ankylosis or less than 30 degrees of plantar flexion. As he is able to move his ankle, by definition he does not have ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Indeed, even considering limitation of motion during flare-ups, the disability is not manifested by ankylosis. See Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). Additionally, the Veteran's disability may not be rated by analogy to Diagnostic Codes 5272, 5273 and 5274 because he did not have ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or an astragalectomy. (Continued on the next page) The Board finds that the most probative evidence of record does not support the Veteran's right ankle disability warrants a rating in excess of 10 percent. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.