Citation Nr: 21039999 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-38 191A DATE: July 2, 2021 ORDER Entitlement to a 20 percent disability rating, and no higher, for the service-connected right ankle disability is granted. REMANDED Entitlement to service connection for left upper extremity carpal tunnel syndrome is remanded. FINDING OF FACT Giving the Veteran the benefit of the doubt, his right ankle disability has marked limitation of motion. CONCLUSION OF LAW The criteria for a 20 percent disability rating, and no higher, for right ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from May 1980 to May 1984. In a July 2013 rating decision, the Regional Office (RO) denied his claims for service connection for the left carpal tunnel syndrome and a compensable rating for his right ankle disability. In July 2018, the Veteran testified via a Board's video conference hearing, a transcript of which is of record. The Veteran declined a new hearing after the Board, in February 2021, advised him of the retirement of the Veterans Law Judge that had conducted his hearing. In May 2019, the Board denied the claim for service connection for the left carpal tunnel syndrome and remanded the increased rating claim for the right ankle disability. In a June 2019 rating decision, the RO granted 10 percent rating for the right ankle disability, effective from the date of claim received on August 9, 2012. In September 2019, the Board denied a rating for right ankle disability higher than 10 percent. The Veteran appealed both the May 2019 and the September 2019 Board decisions. In April 2020, the Court approved a Joint Motion for Partial Remand (JMPR) vacating the May 2019 Board's decision denying the claim for service connection for a left carpal tunnel syndrome and remanded the claim for further development. As was explained by the Veteran's representative in a post-JMPR brief, inter alia, the Board must consider the VA examinations of record in light of the Court's decision in Dalton v. Nicholson, 21 Vet. App. 23 (2007), holding that the VA examiners must consider the Veteran's lay statements regarding the incurrence of the claimed disability and the continuity of symptomatology. In July 2020, the Court approved a JMPR vacating the September 2019 Board's decision denying and remanded to provide new medical examination as to the severity levels of the Veteran's right ankle disability under Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). In February 2021, the Board remanded both claims for development in keeping with the respective JMPRs. 1. Entitlement to a disability rating higher than 10 percent for the right ankle disability. The Veteran contends that he is entitled to a higher rating because his ankle has worsened during the appeal period. During his July 2018 Board hearing, eh reported that his ankle was sore from time to time, especially in the wintertime if he walked long periods of time or if he held his ankle for a long period of time it would swell up. His spouse reported he had greater difficulty going up steps and climbing. The Veteran's right ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) Normal ankle movement is defined as 20 degrees of dorsiflexion and 45 degrees of plantar flexion. As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The July 2020 JMPR found that the March 2018 VA examination was inadequate as it did not provide range of motion results for passive testing and pain on non-weight-bearing pursuant to Correia. The JMPR thus found that the March 2018 VA examination was inadequate. Based on the Correia findings discussed in the JMPR, the April 2013 VA examination would also be inadequate, indeed even more inadequate than the 2018 VA examination, as it also did not perform all the testing described in 38 C.F.R. § 4.59. The JMPR failed to address this inadequacy, but had found that the Board did not address the 2013 VA examiner's finding that "it was more likely than not that [Appellant] would have at least a 35 degree change in Plantar flexion in [right] ankle [range of motion] with a significant flare-up" and had failed to explain 4 why dorsiflexion to 5 degrees and plantar flexion to 25 degrees did not more closely approximate "marked" limitation of motion when normal range of motion for the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion is from 0 to 45. degrees. 38 C.F.R. § 4.71, Plate II. Given that the June 2013 VA examination is inadequate under Correia, the Board finds that consideration of the April 2013 VA examiner's findings would be relying on the findings of an inadequate VA examination and such inadequate findings should not be further considered. As such, the Board will focus on the most recent April 2021 VA examination findings as adequate, as it was the only examination that met Correia requirements. The examiner found that the right ankle's range of motion was abnormal with plantar flexion to 20 degrees and dorsiflexion to 20 degrees, with no additional loss following repetitions. There was pain, on active and passive motion, and weight-bearing. Pain also caused functional loss. The Board notes that the difference between the rating criteria prior to February 7 2021, and from that date, is that the new criteria specifically provides specific degrees of definition for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) and marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) Based on degrees of limitation found in the April 2021 VA examination, the Veteran does not meet the criteria specified by the criteria effective February 7, 2021. Even though definitions of marked and moderate were not specified in the rating criteria in effect prior to February 7, 2021, the Board notes that there had been a definition in the M21-1, which defined moderate (less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion) and marked (less than 5 degrees of dorsiflexion or less than 10 degrees plantar flexion). M21-1 III.iv.4.A.3.k. Such M21-1 provisions are not substantive rules and are not binding on the Board. See Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). Such provisions, however, may be helpful in considering the claim. Similarly, though the new February 2021 rating criteria was not in effect until the effective date, that such M21-1 definitions were later adopted by the new criteria that became effective on February 7, 2021 may also be helpful in considering the claim. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character." See www.merriam-webster.com/dictionary/marked. The Board has also considered the Veteran's lay reports of symptoms, such as functional loss due to pain, swelling, and stiffness. The degree of additional limitation and frequency of flare-ups reflected by the statements have ranged from with overuse (during the June 2013 VA examination) and every day (during the April 2021 VA examination). He has reported to VA examiners of difficulty walking up the stairs, driving, and walking. He indicated to the April 2021 VA examiner that he had swelling and pain when driving and walking. He reported daily flare-ups that are severe since service and caused by driving, climbing, walking and steps. The flare-ups were alleviated when he stopped all activity. The examiner noted that Veteran's ankle condition impacted his ability to work that entails prolonged sitting, standing, walking, for greater than 15 minutes and lifting, greater than 20 pounds, climbing, or repetitive bending of time due to ankle pain. Giving the Veteran the benefit of the doubt, in addition to the limitation found by VA examiners and the credible lay reports, as well as, other evidence not specifically discussed specific to this Veteran's history and circumstances, the Board finds that a 20 percent disability rating is warranted for marked limitation. The Veteran is being granted a 20 percent disability rating under Diagnostic Code 5271, it is the highest schedular rating for limited motion of the ankle, there is no basis to award a higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. In this case, there has been no indication of ankylosis (Diagnostic Code 5270), subastragalar or tarsal joint ankylosis (Diagnostic Code 5272), malunion of the os calcis or astragalus (Diagnostic Code 5273), or astragalectomy (Diagnostic Code 5274). In conclusion, giving the Veteran the benefit of the doubt, the Board finds that a 20 percent disability rating, and no higher, for the Veteran's right ankle disability is warranted. REASONS FOR REMAND 1. Entitlement to service connection for left upper extremity carpal tunnel syndrome is remanded. In the April 2020 JMPR, the Court determined that the April 2018 VA examiner must consider the Veteran's lay statements regarding the incurrence of the claimed disability and the continuity of symptomatology. The August 2018 VA examiner did not specifically address the Veteran's lay statements. In February 2021, the Board subsequently remanded for a new VA medical opinion, which was obtained in April 2021. The Board, however, finds that it did not fully address the remand directives. The Board directed that the examiner should specifically discuss the Veteran's lay statements as to the onset of symptomatology, treatment in service, continuity of symptomatology, and any treatment since discharge, to include his statements made at the Board's hearing. Although the April 2021 VA examiner noted the Veteran's reports as to how he believed the injury was incurred in service, the VA examiner did not address the reports as to symptomatology and in-service tratment. As such, another VA medical opinion is necessary. Additionally, the Board notes that the VA examination refrenced an August 2004 EMG study. Although there are references to such a study in the VA medical records, such as an August 2004 VA medical record noting that the Veteran had been referred for an outside referral for an EMG and that the results had been attached to this progress note, the actual EMG results in question is not associated with the claims file for the Board's review. As such, that record, and any other unassociated VA medical EMGs/other records should be obtained and associated with the claims file. The matters are REMANDED for the following action: 1. Any unassociated VA medical records, to include any outside EMG studies (such as the August 2004 EMG study noted in the April 2021 VA examination) should be associated with the claims file and able to be reviewed by the Board. 2. After the above development has been accomplished, obtain an etiological opinion as to the etiology of the Veteran's left carpal tunnel syndrome. If a physical examination is necessary to answer the Board's questions, one should be scheduled. The examiner is asked to answer the following questions: Is it at least as likely as not (meaning probability of 50 percent or greater) that the Veteran's left carpal tunnel syndrome was incurred in, caused by, or otherwise is etiologically related to his service? Why or why not? In forming an opinion, the examiner should review the April 27, 2020 appellant brief (Remand BVA or CAVC) to understand why the 2018 VA examination opinion was felt to be inadequate. The examiner should specifically discuss the Veteran's lay statements as to the onset of symptomatology, treatment in service, and continuity of symptomatology, and any treatment since discharge, to include his statements made at the Board's hearing (marked 07/31/2018 Hearing Transcript). In rendering a rationale for the formed opinion, the examiner must be aware that the lack of contemporaneous medical treatment records is not the same as affirmative evidence of absence of pertinent symptomatology and/or treatment. In other words, the absence of evidence does not constitute substantive negative evidence and the examiner must not discount the competence or credibility of the Veteran's lay reports of pertinent symptoms and treatment solely based on the lack of contemporaneous medical treatment records. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.