Citation Nr: 22014469 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-03 785 DATE: March 14, 2022 ORDER A 20 percent rating, but not higher, for left ankle tendonitis is granted. Service connection for residuals of a right rupture achilles tendon, to include right ankle condition, is granted. Service connection for degenerative joint disease of left knee is granted. REMANDED Service connection for residuals of a left rupture achilles tendon is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The record shows that the Veteran's left ankle condition including pain, medical treatment, corresponding functional impairment and during flare ups, results in a disability analogous to marked symptoms. 2. Resolving all doubt in the Veteran's favor, the right ankle condition is proximately due by his service-connected left ankle condition. 3. Resolving all doubt in the Veteran's favor, the left knee condition is proximately due by his service-connected left ankle condition. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for left ankle condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for service connection for right ankle condition have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for left knee condition have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty in the United States Navy from December 1981 to February 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision from the Department of Veterans Affairs (VA) San Diego, CA (RO). In November 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in February 2020 and remanded for further developments. The Veteran's claim of service connection for right achilles tendon condition has been recharacterized to include all right ankle disorders, to include tendonitis, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Increased Rating 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. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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. 76453, 76464 (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. 1. Left ankle The Veteran is currently rated under DC's 5024-5271 at 10 percent for left ankle condition, effective April 21, 2014. He reports that he is entitled to a higher rating. Under DC 5271, ankle limitation of motion, a 20 percent disability rating is warranted if it is marked and a 10 percent if it is moderate. In February 2020, the Board remanded this issue to determine the current severity of the Veteran's left ankle condition. Subsequently, the Veteran was afforded a VA examination in October 2020. The VA examination report shows sharp pain, functional impairment, flare-ups, limitation of motion and lack of ability to stand or walk for long periods or going up stairs. See VA medical examination (October 2020). The Board finds that the Veteran's left ankle condition more nearly approximates a 20 percent initial rating. Indeed, his medical record shows the continuous ankle problems with pain and medical treatments. Id. Further, the Veteran reported throughout the appeal that his left ankle continues to worsen even while taking his medications. Id. The Court of Appeals for Veteran's Claims has held, "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). DC 5271 does not contemplate the effects of relief provided by medication, thus entitlement to a higher rating based on such relief may not be denied in this instance. As there is competent evidence of pain, flare-ups, functional impairment, limitation of motion, lack of ability to stand or walk for long periods, the evidence is at least evenly balanced as to whether his symptoms more nearly approximate the criteria for a 20 percent rating under DC 5271. However, a rating in excess of 20 percent is not warranted. The Board finds that even considering the Veteran's pain and corresponding functional impairment, given the Veteran's account and the range of motion studies of record, the Veteran's left ankle disability does not approximate ankylosis of the left ankle. See Chavis v. McDonough, 34 Vet. App. 1 (2021). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial rating of 20 percent, but not higher, for left ankle condition under DC 5271 for the appeal period is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.7. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). Service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service connected disability; or, aggravated by a service connected disability. See 38 C.F.R. § 3.310 (2018); see also El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. See Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Further, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. See Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 2. SC right ankle The Veteran asserts that service connection for his right ankle condition is warranted since it is related to service and his service-connected conditions. See BVA hearing transcript (November 2019). The Veteran has a diagnosis of right ankle tendonitis with onset in 1982. See VA medical examination (October 2020). Thus, the Veteran has a current condition and meets the first element of service connection. The Board acknowledges that the October 2020 examiner stated that the Veteran did not rupture his right achilles tendon. However, the same examiner stated that the Veteran has right ankle tendonitis due to his service-connected left ankle condition. Id. Thus, the Board finds that service connection is warranted for the Veteran's right ankle condition since the credible and competent medical and lay evidence shows that the Veteran's right ankle condition is related to his service-connected left ankle condition. In reaching this determination, the Board notes that the October 2020 VA examiner stated that the Veteran's right ankle tendonitis is a progression of his service-connected left ankle condition. The rationale was "It is well accepted in medical literature that an injury in a joint will also have ramifications for the opposing joint on the same plane immediately distal or proximal especially with ambulation, sitting and standing, ultimately causing compensation pain and injury due to shifting weight from the injured side to the non-injured side. In the Veterans case the aforementioned left Achilles tendonitis condition causing his right Achilles tendonitis. Thus, resolving all doubt in the Veteran's favor, because the Veteran's right ankle condition was caused and aggravated by his service-connected left ankle condition, secondary service connection for right ankle condition is granted. 3. SC left knee The Veteran asserts that service connection for his left knee condition is warranted since it is related to service and his service-connected conditions. See BVA hearing transcript (November 2019). The Veteran has a diagnosis of left knee degenerative arthritis with onset in 1988. See VA medical examination (October 2020). Thus, the Veteran has a current condition and meets the first element of service connection. The Board acknowledges that the October 2020 examiner stated that there was no evidence of a chronic left knee condition in service, therefore direct service connection is less likely. However, the examiner stated that the Veteran has a left knee condition due to his service-connected left ankle condition. Id. The rationale was "It is well accepted in medical literature that an injury in a joint will also have ramifications for the opposing joint on the same plane immediately distal or proximal especially with ambulation, sitting and standing, ultimately causing compensation pain and injury due to shifting weight from the injured side to the non-injured side. In the Veterans case the aforementioned left ankle condition causing his left knee. Thus, the Board finds that service connection is warranted for the Veteran's left knee condition since the credible and competent medical and lay evidence shows that the Veteran's left knee condition is related to his service-connected left ankle condition. Thus, resolving all doubt in the Veteran's favor, because the Veteran's left knee condition was caused and aggravated by his service-connected left ankle condition, secondary service connection for left knee condition is granted. REASONS FOR REMAND The Veteran seeks service connection for his left achilles condition. In support, he reported that he suffered a partial tear of his left achilles tendon in service and pain has continued ever since. See BVA hearing (November 2019). Indeed, his STR confirms his injury and treatment in service. See STR (February and April 1983). The Board notes that the October 2020 VA examiner diagnosed the Veteran with left achilles tendon rupture in 1982 and left ankle tendonitis in 1982. Additionally, the examiner stated that the Veteran's left achilles condition was resolved. However, the examiner did not provide a complete rationale regarding the findings that lead to the conclusion that his left achilles condition has resolved and that the Veteran does not suffer from any symptoms, problems or functional impairment in his left achilles tendon. Thus, the Board finds it necessary to obtain a medical examination to determine if the Veteran suffers from a current left achilles condition or functional impairment. On remand, the examiner must provide a complete rationale to support his or her conclusions and clarify if the Veteran's has a current left achilles condition or functional impairment; or if this achilles condition has resolved and the Veteran only currently suffers from his service-connected left ankle tendonitis. In addition, the Board notes that the Veteran reported on his October 2020 and June 2021 VA examinations that his service-connected disabilities affect his employable status. See VA medical examinations (October 2020 and June 2021). To this date, no VA form 21-8940 has been received. As such, the issue of entitlement to TDIU has been raised. The evidence shows that the Veteran is not working and in light of the decision of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009), this issue must be remanded. Additionally, the Board finds that the Veteran's TDIU claim is inextricably intertwined with the readjudication of the matters on remand. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Furnish the Veteran a VA form 21-8940 and request that he complete and submit it. 2. Obtain complete VA and Non-VA treatment records of the Veteran's left achilles condition. 3. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service left achilles symptoms and functional impairment. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). The examiner should provide a full description of the Veteran's left achilles problems, symptoms and functional impairment. A diagnosis or functional impairment must be ruled in or excluded as to the Veteran's left achilles. The examiner must opine as to whether it is at least as likely as not that the Veteran's left achilles impairment, if any, is related to his left achilles rupture in service. Additionally, the examiner must opine if his left achilles condition is related or proximately due, caused, aggravated or related to his left achilles rupture injury in service or his service-connected disabilities, specifically his left ankle tendonitis. In doing so, the examiner must specifically acknowledge and discuss the Veteran's medical and competent lay reports of the onset and recurrence of his symptoms of his left achilles condition. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.