Citation Nr: 25004841 Decision Date: 04/09/25 Archive Date: 04/09/25 DOCKET NO. 19-38 295 DATE: April 9, 2025 ORDER Entitlement to a separate initial noncompensable rating for right ankle arthritis effective May 28, 2015, is granted. REMANDED Entitlement to an initial compensable rating for right ankle arthritis is remanded. Entitlement to an initial rating in excess of 30 percent for left knee instability is remanded. Entitlement to an initial rating in excess of 20 percent for right knee instability is remanded. Entitlement to an initial rating in excess of 10 percent for right knee limitation of flexion is remanded. Entitlement to an initial compensable rating for right knee limitation of extension is remanded. Entitlement to an initial rating in excess of 20 percent for a low back condition is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for right tarsal tunnel syndrome is remanded. FINDING OF FACT The evidence persuasively demonstrates that the Veteran has diagnosable right ankle arthritis distinct from service connected right tarsal tunnel syndrome that has been present for the entirety of the appeal period and which is attributable to the physical impact of repeated running drills he engaged in while in service; however, the evidence only demonstrates that the condition results in chronic right ankle pain without objective indication of impairment of functioning, and it is unclear whether that pain is wholly attributable to the right ankle arthritis distinct from any other service connected right foot or ankle condition. CONCLUSION OF LAW The criteria for a separate initial noncompensable rating for right ankle arthritis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.21, 4.124a, Diagnostic Codes 5003, 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to May 1985. By way of history, in a September 2023 decision, the Board denied entitlement to an increased rating for right tarsal tunnel syndrome. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court), which issued a June 2024 Joint Motion for Remand (Joint Motion) vacating the denial of an increased rating and returning that issue to the Board for it to take action commensurate with the Court's directives. In a November 2024 decision, the Board remanded the issue of entitlement to an increased rating for right tarsal tunnel syndrome, as well as the additional increased rating claims currently before it, back to the Agency of Original Jurisdiction (AOJ) for additional development of the record. After completing that development, the AOJ issued a January 2025 supplemental statement of the case continuing the denial of increased ratings for each of the issues listed above. The case was then returned to the Board for its adjudication. As addressed in the prior November 2024 Board decision, the Veteran has been granted a total disability rating based upon individual unemployability due to service-connected disability (TDIU) dated up to the earliest point at which he would be entitled to the benefit, and so any discussion as to whether an earlier effective date for the grant of TDIU has been raised by the record is moot. Rice v. Shinseki, 22 Vet. App. 447 (2009); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Furthermore, the Board also notes that the Veteran has not been assigned a 100 percent disability for any single disability, and, moreover, there is no suggestion from the record that the TDIU that he is entitled to is based on a determination that he is precluded from securing and maintaining substantially gainful employment by virtue of any single disability, even when his various lower extremity musculoskeletal conditions are considered together as impacting one body group pursuant to 38 C.F.R. § 4.16(a). As such, this is not a case contemplated by Bradley v. Peake, 22 Vet. App. 280 (2008). Entitlement to a separate rating for right ankle arthritis The Court in the June 2024 Joint Motion vacated the denial of a rating in excess of 10 percent for right tarsal tunnel syndrome and remanded the matter to the Board for it to evaluate whether the Veteran's prior diagnosis of right ankle arthritis is a manifestation of his service connected right tarsal tunnel syndrome or is instead a separately diagnosable condition for which service connection is warranted. In returning this matter to the Board, the Court highlighted that the Veteran in his original May 2015 service connection claim sought compensation for a right ankle condition and did not explicitly restrict his contention to right tarsal tunnel syndrome. As such, the Court requested that the Board determine whether a separate rating is warranted for the right ankle arthritis distinct from the service connected right tarsal tunnel syndrome. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In accordance with the Court's instructions, the Board in November 2024 remanded this matter to the AOJ for it to secure an examination and opinion to confirm whether the Veteran has diagnosable right ankle arthritis, and, if so, determine whether the condition is a manifestation of a service-connected disability or if it constitutes a separately diagnosable disability for which service connection may be warranted. In a December 2024 VA ankle examination, the Veteran reported experiencing chronic right ankle pain and stiffness that limits his mobility. After an in-person evaluation revealed no loss of range of motion or other impairment of functioning, the examiner confirmed that the Veteran had diagnosable right ankle arthritis distinct from the service-connected right ankle tarsal tunnel syndrome. Additionally, the examiner noted that the Veteran exhibited pain with weight-bearing as well as pain with both active and passive motion. According to the examiner, the chronic pain results in difficulty standing or walking for long periods of time as well as an inability to run. As for whether the right ankle arthritis is distinct from the right tarsal tunnel syndrome, the December 2024 examiner first noted that the diagnosis of right ankle arthritis is based on an X-ray examination, and that the condition is wholly distinct from the service connected right tarsal tunnel syndrome. That being said, the examiner was unable to provide a definitive answer as to whether the symptoms of the right ankle arthritis are also distinct from the symptoms of right tarsal tunnel syndrome, and noted that symptoms of the Veterans various foot conditions, to include tarsal tunnel syndrome, pes planus, plantar fasciitis, Charcot foot, and calcaneal heel spurs "tend to be shared therefore they can overlap very seamlessly making the distinction between symptoms very difficult even for the patient." See December 28, 2024, Medical Opinion Disability Benefits Questionnaire. With the confirmation of a distinct diagnosis of right ankle arthritis, the Board finds that a separate initial noncompensable rating may be assigned for right ankle arthritis effective the same date as the grant of service connection for right tarsal tunnel syndrome. Specifically, the Board notes that entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The regional office in a December 2018 rating decision awarded service connection for right tarsal tunnel syndrome on the basis of a positive April 2018 etiology opinion by a VA examiner, who found that the Veteran sustained recurrent twisting and turning of his right ankle while in service as a result of repeated running exercises he had to engage in. Although the Veteran did not have a confirmed diagnosis of right ankle arthritis until a January 2020 private medical record detailed that he had the condition, granting him the benefit of the doubt, and in recognition of his reports of having experienced chronic right ankle pain for the entirety of the appeal period, the Board finds that the evidence persuasively suggests that he has had some degree of arthritis in his right ankle for as long as he has pursued his claim. Accordingly, a separate initial noncompensable rating is assigned for right ankle arthritis, effective the date that VA received the original claim seeking entitlement to service connection for a right ankle condition, that is, from May 28, 2015. However, as detailed below, in light of deficiencies in the prior examination report, the Board is unable to ascertain whether the Veteran exhibits symptomatology for the right ankle arthritis that is distinct from his separately service-connected right foot and ankle conditions, namely, right tarsal tunnel syndrome and right foot pes planus. The evaluation of ankle arthritis is governed by 38 C.F.R. § 4.71a, Diagnostic Code 5271, which provides for compensation for limited motion of the ankle, as well as 38 C.F.R. § 4.71a, Diagnostic Code 5003, which provides for a base 10 percent rating for musculoskeletal disabilities manifested by pain but which are otherwise noncompensable under the applicable Diagnostic Code. Since the December 2024 examiner found no objective evidence of functional impairment, and the right ankle pain that the Veteran experiences cannot be wholly attributed to the right ankle arthritis, the Board can only assign a noncompensable rating for the condition at this time. Entitlement to a compensable initial rating for right ankle arthritis is therefore remanded for the AOJ to secure an addendum evaluation regarding the severity of the right ankle arthritis. REASONS FOR REMAND 1. Entitlement to a compensable initial rating for right ankle arthritis As noted above, the December 2024 examiner who evaluated the severity of the right ankle arthritis was unable to provide a definitive answer as to whether the symptoms of the right ankle arthritis are distinct from the symptoms of right tarsal tunnel syndrome or the Veteran's other service-connected foot and ankle conditions, namely, bilateral pes planus. Although the Board recognizes the inherent difficulty in differentiating between the symptomatology stemming from each of these distinct diagnosable conditions, nevertheless, the Board does not find that the examiner provided a sufficient justification for why she was unable to distinguish between the symptoms attributable to the service-connected disabilities at issue. Specifically, the Board highlights that right tarsal tunnel syndrome is a neurological condition which considers impairment of the ankle as well as the foot. The Board's consideration of the corresponding December 2024 VA nerve examination reveals that the examiner was able to identify that the tarsal tunnel syndrome impacts the posterior tibial nerve, which primarily affects sensation and functioning in the sole of the foot. With this in mind, the Board is unsure why the examiner determined that it was not possible to distinguish between the right ankle pain claimed by the Veteran and the right foot symptomatology that appears to predominantly be associated with the right tarsal tunnel syndrome and pes planus. A remand is therefore necessary to ascertain the degree to which lower extremity pain in the right ankle can be attributed to the now-service connected right ankle arthritis and if any of this pain is separately attributable to the right tarsal tunnel syndrome and right foot pes planus. This is in accordance with the Board's prior remand instructions, which are copied in large part below. Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to an increased initial rating for right tarsal tunnel syndrome As the results of any further evaluation of the severity of the right ankle arthritis will bear on the evaluation of the severity of the right tarsal tunnel syndrome, it too is remanded as intertwined with the right ankle arthritis claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) 3. Entitlement to increased ratings for a low back condition, bilateral knee conditions, and left lower extremity radiculopathy The Board in November 2024 remanded the issues of entitlement to increased ratings for a low back condition, bilateral knee conditions, and left lower extremity radiculopathy in order to secure a new examination to evaluate the severity of each of these conditions. Specifically, the Board requested that the chosen examiner make estimations as to the degree of increased loss of range of motion during flare-ups, both contemporarily as well as retrospectively, pursuant to Sharp?v. Shulkin, 29?Vet. App.?26, 33?(2017). In the resulting December 2024 examination, the examiner acknowledged that the Veteran endorsed experiencing flare-ups, but chose not to provide the requested estimates as to any increased loss of range of motion. In support of this decision, the December 2024 examiner related that the Veteran reported that he experiences chronic pain rated at a 9 out of 10. In the examiner's estimation, because the Veteran experiences chronic pain, it is impossible to differentiate between this constant pain and any flare-ups of additional symptomatology. This illogical finding ignores the fact that the Veteran has not demonstrated total impairment in any of the musculoskeletal conditions on appeal, and so clearly it is possible for his disabilities to manifest in even greater impairment than what is reflected in the examinations of record. The Board cannot rely on these opinions because the examiner offered an insufficient rationale for why she neglected to provide the requested estimations as to the increased impairment that the Veteran would experience during a flare-up of symptomatology for the various musculoskeletal conditions on appeal. A remand is therefore necessary to secure yet another VA examination to evaluate the nature and severity of the low back condition and bilateral knee conditions, in accordance with the Board's prior remand instructions, which are copied in large part below. Stegall, supra. As the results of the low back examination will bear on the evaluation of the severity of the left lower extremity radiculopathy, it too is remanded as intertwined with the low back condition claim. See Harris, supra. The matters are REMANDED for the following action: 1. Schedule a VA examination with a VA medical professional to evaluate the severity of the Veteran's bilateral knee conditions, low back condition, and left lower extremity radiculopathy. All symptomatology experienced by the Veteran during the appeal period should be identified. The most up-to-date Disability Benefits Questionnaire must be utilized for both the bilateral knee conditions as well as the low back condition and the lower extremity radiculopathy. In order to?comply?with Correia v. McDonald,?28?Vet. App.?158?(2016), the examiner must estimate the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In order to?comply?with?Sharp?v. Shulkin, 29?Vet. App.?26, 33?(2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limit the Veteran's functional ability during flares or repetitive use. The examiner should provide a retroactive opinion as to any additional functional loss during flare-ups at any time during the appeal period and an estimate of that loss in terms of degrees reduction in range of motion. If the examiner cannot provide the above-requested opinions without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups, and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which, if obtained, would allow an opinion. The examiner should also opine as to the impact of the Veteran's bilateral knee conditions, low back condition, and left lower extremity radiculopathy on his daily activities and identify any motion or activities that would be restricted and the degree to which that would occur. The examiner shall review the entire claims file, to include all lay statements and include a copy of this REMAND in the examination report. All opinions and conclusions must be accompanied by a rationale. 2. Schedule the Veteran for a VA ankle examination to evaluate the nature and severity of any and all right ankle symptomatology, utilizing the most up-to-date Disability Benefits Questionnaire. A copy of the claims file should be made available to and reviewed by the examiner, who must indicate that they reviewed the claims file in full before setting forth any opinion as to etiology. Any clinical testing deemed necessary should be scheduled. The examiner is asked to provide a complete overview of the Veteran's right ankle symptomatology and any medical history pertaining to his complaints of and treatment for right ankle symptomatology. The examiner must then set forth a diagnosis or diagnoses that accounts for all of this symptomatology and must delineate whether any symptomatology is separately attributable to one or more diagnosed right ankle or foot conditions or if the noted symptomatology cannot be clearly distinguished between the diagnosed conditions. Specifically, the examiner must determine whether the Veteran's diagnosis of right ankle arthritis is appropriate, and whether the symptomatology attributable to the right ankle arthritis is distinct from the symptomatology attributable to the right tarsal tunnel syndrome for which the Veteran is already service connected. The examiner shall review the entire claims file, to include all lay statements and include a copy of this REMAND in the examination report. All opinions and conclusions must be accompanied by a rationale. 3. Prior to returning this Remand to the Board, it is asked that the AOJ review the actions it has taken to ensure compliance with the Board's directives outlined above. If those directives are not complied with in full, the AOJ should take all reasonable additional measures in order to confirm that each component of the Remand instructions are addressed in a comprehensive opinion report. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.