Citation Nr: 21032472 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 13-21 582 DATE: May 27, 2021 ORDER A rating higher than 20 percent for a left ankle disability is denied. A rating higher than 10 percent for muscle atrophy of the left calf is denied. REMANDED Service connection for a left knee disability. Service connection for a right hip disability. Service connection for a left hip disability. FINDINGS OF FACT 1. The Veteran's left ankle disability is manifested by no more than marked limited motion of the ankle; ankylosis is not shown. 2. The Veteran's muscle atrophy of the left calf is no more than moderate. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for a left ankle disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for a rating higher than 10 percent for muscle atrophy of the left calf secondary to the service-connected left ankle disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.55, 4.56, 4.73, DC 5311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to December 1971. This matter is on appeal from an August 2010 rating decision. In December 2016, the Veteran testified at a Board hearing. Most recently, in a November 2020 decision, the Board granted a 20 percent rating for the service-connected left ankle disability and a separate 10 percent for muscle atrophy of the left calf secondary to the left ankle disability. The issues of even higher ratings for the left ankle disability, to include on an extraschedular basis, and for muscle atrophy of the left calf, as well as the service connection claims for a left knee disability and right and left hip disabilities, were remanded for additional development. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). During the pendency of the appeal, the criteria for evaluating musculoskeletal disorders were revised, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020). This included as to limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. The revised criteria apply for the period only beginning on the effective dates of the new provisions. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to February 7, 2021, under DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Effective February 7, 2020, a 10 percent rating is warranted for moderate limited motion of the ankle, defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A maximum 20 percent rating is warranted for marked limitation of motion of the ankle, defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Essentially, the amendments characterized the terms as equivalent to degrees. Normal ranges of motion of the ankle are dorsiflexion from zero degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Under DC 5311, for Muscle Group (MG) XI pertaining to motion of the foot, a slight impairment is assigned a noncompensable rating, a moderate impairment is assigned a 10 percent rating, a moderately severe impairment is assigned a 20 percent rating, and a severe impairment is assigned a 30 percent rating. 38 C.F.R. § 4.73, DC 5311. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, and impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). Under DCs 5301 to 5323, muscle injury disabilities are rated as slight, moderate, moderately severe, or severe according to criteria based on the type of injury, the history and complaint, and objective findings. 38 C.F.R. § 4.56(d). 1. A rating higher than 20 percent for a left ankle disability. Schedular Analysis As the Veteran is already in receipt of the highest schedular rating available under DC 5271, the Board finds that a rating higher than 20 percent is not warranted for his service-connected left ankle disability under the pre-February 7, 2021 rating criteria. In addition, the Board finds that a higher rating is not warranted under the revised Rating Criteria for the period on appeal as of February 7, 2021. In this regard, the revised Rating Criteria afford a maximum 20 percent rating for marked limitation of motion, which is defined as 5 degrees dorsiflexion or less than 10 degrees plantar flexion. 85 Fed. Reg. 76453 (Nov. 30, 2020). The Veteran's service-connected left ankle disability has already been shown to be manifested by marked limitation of motion, and he is already in receipt of the maximum 20 percent disability rating. Thus, the Board finds that the Veteran is also not entitled to a rating higher than 20 percent for his service-connected left ankle disability under the revised Rating Criteria during the relevant period. In addition, the July 2020 VA ankle examination report reflects plantar flexion of the left ankle to 35 degrees and dorsiflexion to 10 degrees. No ankylosis, or even functional ankylosis, of the left ankle, subtalar, or tarsal joint was reported. Thus, a rating under DC 5270 is not warranted at any time during the rating period on appeal. The Board notes that the Veteran's use of a cane, along with difficulty with walking or climbing, see January 2020 Correspondence, are contemplated by the 20 percent rating assigned under DC 5271. Specifically, 38 C.F.R. § 4.45, which directs VA to consider disturbance of locomotion, instability of station, and interference with weight-bearing, contemplates difficulty with walking/use of assistive device for ambulation. See Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). As reflected above, the November 2020 Board decision granted a separate 10 percent rating for muscle atrophy of the left calf secondary to the left ankle disability. Although the evidence reflects laxity of the left ankle, see September 2017 VA examination report, uncertainty of movement is explicitly listed as a cardinal sign or symptom of muscle injury, and thus, a separate rating under DC 5257 pertaining to lateral instability would result in impermissible pyramiding. 38 C.F.R. § 4.14. With respect to January 2020 Correspondence noting left ankle symptoms, to pain and twisting of the left ankle, the Board notes that pain is contemplated in the rating criteria for all musculoskeletal disabilities, and therefore it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that § 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis); see also 38 C.F.R. §§ 4.40, 4.45. Records associated with the file since the November 2020 Board remand reflect that the Veteran walks two to three miles daily. See March 2021 CAPRI documents. In addition, no ankle edema was reported. See December 2020 Medical Treatment Record Non Government Facility. In addition, and although a June 2020 record indicates that the Veteran was to undergo surgeries involving a lower extremity subsequent to the June 2020 VA examination, see June 2020 VA FORM 21-0820, the record reflects that the Veteran underwent a right hip replacement in August 2020. See March 2021 CAPRI documents; December 2020 Choice records. Additionally, and although the Veteran's September 2010 application for VA's Vocational Rehabilitation & Employment (VR&E) benefits is associated with the file, the record reflects that the Veteran did not pursue that claim, and thus, there are no additional records in that respect. See December 2020 VR&E-General. In sum, as the preponderance of the evidence is against the claim for a schedular rating higher than 20 percent for the left ankle disability, there is no doubt to be resolved. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, a rating higher than 20 percent for the Veteran's left ankle disability is not warranted. Extraschedular Consideration With respect to an extraschedular rating, on remand, the RO decided not to refer this case to the Director of Compensation (Director) for extraschedular consideration, per the March 2021 Supplemental Statement of the Case (SSOC). Having considered the evidence regarding the service-connected left ankle disability, the Board finds that there is no readily apparent sign that the schedular criteria is insufficient, or otherwise of an exceptional or unusual disability picture, and as such, extraschedular referral is not warranted. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). There is no exceptional disability picture due to the left ankle disability outside of the schedular standards. The Board notes that pain is contemplated in the rating criteria for all musculoskeletal disabilities, and therefore it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59; see Burton, 25 Vet. App. at 5 (holding that § 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis); see also 38 C.F.R. §§ 4.40, 4.45. Symptoms such as weakness and fatigability are also contemplated under the regulations requiring consideration of the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See 38 C.F.R. §§ 4.40, 4.45. Further, the April 2010 VA examiner reported that the Veteran's inability to work as a carpenter was mostly due to hip and knee conditions and only minimally due to his service-connected left ankle disability, noting he was able to perform sedentary work. Although the September 2017 VA examiner noted that the Veteran's left ankle disability required avoidance of uneven ground, precluded rapid ambulation, and made stairs difficult, sitting and driving were unaffected. Further, the July 2020 and February 2021 VA examination reports reflect occupational impairment due to a right hip condition. With respect to the assertion that left ankle pain interferes with sleep, see January 2020 Correspondence, VA treatment records in March 2021 reflect that he was sleeping poorly due to discomfort associated with left hip and knee conditions, and as above, that he walked two to three miles daily, and restored cabins for the Forest Service and/or is a Forest Service volunteer. See also December 2020 Medical Treatment Record Non-Government Facility. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the Rating Schedule would not adequately compensate him for his service-connected left ankle disability and separately rated muscle atrophy of the left calf for which he has a combined 30 percent rating. Thus, extraschedular referral is not warranted. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 2. A rating higher than 10 percent for muscle atrophy of the left calf. The Veteran's muscle atrophy of the left calf is rated as 10 percent disabling under 38 C.F.R. § 4.73, DC 5311. The November 2020 Board decision granting the separate 10 percent rating contemplates moderate atrophy of the left calf muscle. As noted, the June 2020 VA ankle examination report notes 2 cms. of muscle atrophy of the left calf located 10 cms. below the left knee secondary to the service-connected left ankle disability. Although the examiner reported mild atrophy, and even though no atrophy of the extremities was noted in November 2018, see May 2020 VA treatment records, both the June 2020 and September 2017 VA examination reports reflect the circumference of the right side measured 42 cms and the circumference of the left side measured 40 cms. In addition, the September 2017 VA examination report notes 2/5 muscle strength on the left side on both plantar flexion and dorsiflexion, as well as poor propulsion with ambulation. The evidence does not a support a rating higher than 10 percent for muscle atrophy of the left calf. As reflected above, the record the Veteran walks two to three miles a day and restores cabins for the Forest Service and/or is a Forest Service volunteer. See March 2021 VA treatment records. The Board considered the lay statements and the clinical findings of record. The Board attributes greater probative value to the clinical findings and opinions which do not show more than moderate muscle atrophy of the left calf associated with the left ankle disability. As the preponderance of the evidence is against the claim for a rating higher than 10 percent for muscle atrophy of the left calf, there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, a rating higher than 10 percent for the Veteran's muscle atrophy of the left calf is not warranted. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. Service connection for a left knee disability. 2. Service connection for a right hip disability. 3. Service connection for a left hip disability. Pursuant to the Board's November 2020 remand, the Veteran was afforded a VA examination in February 2021. The examiner opined that the Veteran's bilateral hip and left knee disorders were less than likely caused or aggravated by his service-connected left ankle disability. However, the examiner cited to medical literature reflecting that an antalgic gait, such as the Veteran's, increased the magnitude of acceleration forces on the limb segments of the normal leg, thus, increasing the legs momentum, and as such, the increased impact at heel strike could theoretically increase stress in the normal leg. Therefore, the Board finds the rationale provided for the opinion is not completely adequate. Thus, an addendum opinion is warranted. The matters are REMANDED for the following action: Return the claims file to the VA examiner who conducted the February 2021 examination. If the February 2021 examiner is not available, the claims file should be provided to an appropriate medical professional to render the requested opinion. The need for another examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) left knee and hip disorders is left to the discretion of the medical professional offering the addendum opinion. The clinician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left knee and right and left hip disabilities are caused by or aggravated by the service-connected left ankle disability with associated muscle atrophy of the left calf. The claims file must be made available to and reviewed by the clinician. Aggravation means an increase in severity beyond the natural progress of the disease. For any aggravation found, the clinician should state, to the extent possible, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. (Continued on the next page) In rendering the opinions, evidence for consideration includes VA examinations, including medical literature cited in the February 2021 examination report, treatment records, and the Veteran's lay statements. Rationale for all opinions expressed should be provided. If the clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.