SLEEP APNEA SYNDROMES (OBSTRUCTIVE CENTRAL MIXED)

Summary

The Veteran, an Air Force Veteran who served from July 1977 to April 1980, appeals the denial of service connection for obstructive sleep apnea (OSA) and lumbar spine disability, as well as an increased rating for his right ankle fracture residuals. The Board granted service connection for OSA, finding that while a VA examiner's opinion was contradictory and inadequate, the evidence, when viewed in the light most favorable to the Veteran and resolving reasonable doubt, supported a link between his OSA and service-connected conditions like obesity and depression, considering obesity as an intermediate step. The Board also granted service connection for lumbar spine disability, finding that the evidence was at least evenly balanced regarding whether his service-connected right ankle condition caused or aggravated his back disability, thus applying the benefit of the doubt. For the right ankle, the Board reviewed multiple VA examinations and found that the Veteran's symptoms, including constant use of a cane, walker, and scooter, along with abnormal range of motion and pain on repeated use, supported a marked limitation, warranting a 20 percent rating under Diagnostic Code 5271, an increase from his previous 10 percent rating.

Rationale

Contention of secondary to service-connected conditions; Inadequate VA opinion with contradictory findings; Benefit of the doubt applied due to balanced evidence

Full Decision Text

Citation Nr: 26004591
Decision Date: 04/16/26	Archive Date: 04/16/26

DOCKET NO. 16-19 392A
DATE: April 16, 2026

ORDER

Entitlement to service connection for obstructive sleep apnea (OSA) is granted. 

Entitlement to service connection for lumbar spine disability is granted.

Entitlement to an increased rating of 20 percent for right ankle fracture residuals is granted.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, OSA is at least as likely as not related to a service-connected condition, including obesity as an intermediate step.

2. Resolving reasonable doubt in the Veteran's favor, lumbar spine disability is at least as likely as not related to service-connected right ankle condition.

3. Throughout the period on appeal the Veteran had marked right ankle limitation of motion, as he had examinations showing five degrees of dorsiflexion with reduced plantar flexion as well as pain. The Veteran did not have right ankle ankylosis, or its equivalence. 

CONCLUSIONS OF LAW

1. The criteria for service connection for OSA as secondary to service-connected conditions are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. The criteria for service connection for lumbar spine disability as secondary to service-connected conditions are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

3. The criteria for an assignment of a rating of 20 percent, but no higher, for a service-connected right ankle disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.71a. Diagnostic Code (DC) 5271.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had honorable active service with the United States Air Force from July 1977 to April 1980.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Board remanded the claims in September 2020, April 2021, and October 2023. 

The claims are back before the Board after a supplemental statement of the case (SSOC). 

The Board finds that there has been substantial compliance with the September 2020, April 2021, and October 2023 Board remands. Several opinions were obtained and the Board has found the evidence sufficient to grant entitlement to service connection for OSA and lumbar spine and satisfying the duty to assist the Veteran with these claims. 

Additionally, records were updated and additional examinations were obtained to rate the severity of the Veteran's right ankle condition. The Board notes that not all examinations are fully adequate, as discussed below in more detail, as to reduced range of motion, but that the recent examination addressed reduced range of motion on repeated use over time. Moreover, the Board finds that substantial compliance has been fulfilled as to the right ankle as the examinations have fully addressed whether his ankle has ankylosis and his examinations have been deemed adequate by the Board to rate him favorably for the period on appeal when considering all the available evidence. Therefore, the Board finds that the duty to assist the Veteran with his right ankle increased rating claim has also been satisfied. As such, the Board has adjudicated all the claims.  

Service Connection

Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

However, a disability, with no causal relationship ("nexus") to an in-service event can be considered service-connected by being proximately due to or aggravated by a service-connected disease or injury. 38 § C.F.R. §3.310(a)-(b).  

To
2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

However, a disability, with no causal relationship ("nexus") to an in-service event can be considered service-connected by being proximately due to or aggravated by a service-connected disease or injury. 38 § C.F.R. §3.310(a)-(b).  

To establish secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing a link ("nexus") between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 

The Board notes that a non-service-connected disability proximally caused by a service-connected disability is considered part of the original condition. See 38 § C.F.R. §3.310(a).  

In this case, the Board has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21. Vet. App. 303 (2007).

The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. See 38 U.S.C. § 5107(b). If there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter than the benefit-of-the-doubt rule applies, but the benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

1. Entitlement to service connection for OSA 

The Veteran contends that his OSA incurred in service. In the alternative he contends that his sleep apnea is due to weight gain from his service-connected conditions. See Hearing Related dated February 2020. The Veteran's representative stated that the Veteran's sleep condition may also be secondary to psychiatric condition, noting that his weight gain is also related to his depression. See Third Party Correspondence received August 2020.  

The Veteran has service-connected conditions including depressive disorder, and residuals of right ankle fracture. 

He also has a current medical diagnosis of sleep apnea or OSA. See C&P Exam dated February 2024. Therefore, the Board finds that the Veteran meets the first and second elements of the secondary service connection test discussed above.

Therefore, the main issue before the Board is whether or not there is
 he contends that his sleep apnea is due to weight gain from his service-connected conditions. See Hearing Related dated February 2020. The Veteran's representative stated that the Veteran's sleep condition may also be secondary to psychiatric condition, noting that his weight gain is also related to his depression. See Third Party Correspondence received August 2020.  

The Veteran has service-connected conditions including depressive disorder, and residuals of right ankle fracture. 

He also has a current medical diagnosis of sleep apnea or OSA. See C&P Exam dated February 2024. Therefore, the Board finds that the Veteran meets the first and second elements of the secondary service connection test discussed above.

Therefore, the main issue before the Board is whether or not there is a link between the Veteran's OSA and his service-connected conditions. As noted, the Veteran feels that his service-connected conditions either caused or aggravated his OSA. He believes that he has gained weight over time due to an inability to exercise, and depression.   

Resolving the evidence in the light most favorable to the Veteran, the Board finds that the Veteran's service-connected conditions caused or aggravated his OSA.  

Recent opinions state that the most common cause of OSA in adults is obesity, male sex, and advancing age. The February 2024 opinions also noted that the Veteran's right lower extremity conditions could cause significant immobility which would contribute to weight gain. See C&P Examination received February 2024.

However, the examiner then also found that obesity was a risk factor for OSA but not a direct cause. The examiner concluded that the Veteran's OSA was not secondary to the Veteran's service-connected conditions as the Veteran's OSA was more likely due to anatomical structures of the Veteran's pharyngeal airway. The examiner also opined that the Veteran's OSA was not aggravated by his body habitus, but rather by his noncompliance with CPAP therapy. 

As for other relevant evidence, the Veteran's records show that he has a service-connected right ankle condition with use of an ankle brace, cane, walker and scooter. The February 2024 VA examination noted the constant use of a cane and the occasional use of a walker and occasional use of a scooter. While the Veteran has another complicating injury to the right lower extremity the examiner stated that the use of the cane, walker, and scooter was related to right ankle residuals. See C&P Examination received February 2024. 

While, on its face the medical opinion obtained by the VA in February 2024 did not opine that there was a link or causation between the Veteran's sleep apnea and his service-connected conditions, the opinion's rationale was contradictory.   

The February 2024 examiner provided a general explanation that OSA was not necessarily due to obesity, but the examiner has acknowledged that the Veteran's service-connected conditions could have caused limited mobility which is a factor in obesity. The examiner also failed to properly address the Veteran's depression in its assessment of obesity as an intermediate step. Lastly, the examiner did not well support their opinion that the Veteran's OSA was only due to anatomical structures of the Veteran's pharyngeal airway after having stated multiple times that obesity is one of the most common risk factors.  

Overall, in reviewing the February 2024 VA opinion, the Board finds that it is inadequate for several reasons. The opinion speaks generally without supplying any conclusions specific to the Veteran's medical history or records. The opinion does not address lay statements sufficiently. The opinion does not explain why inactivity is not a factor in the Veteran's obesity and it does not address why inactivity due to service-connected conditions is not at least a source of aggravation of the Veteran's OSA. Moreover, even if the Veteran fails to comply with CPAP therapy, that does not mean that the Veteran's right ankle or depression could not have aggravated the condition to some extent. 

As the finder of fact, the Board considered all the evidence and finds that it is at least evenly balanced as to whether the Veteran's service-connected conditions caused or aggravated his OSA, considering obesity as an intermediate step.  

The law is clear. 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 Veteran shall be afforded the benefit of the doubt and prevail upon the issue. 38 U.S.C. § 5107(b).

Resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's OSA reasonably was caused or aggravated by his service-connected conditions, considering obesity as an intermediate step. Accordingly, the Veteran's claim for service connection for OSA is granted.

2. Entitlement to service connection for low back disability

The Veteran contends that his back condition is due to his service-connected right ankle condition and his knee condition as well as his altered gait. His representative also
. 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 Veteran shall be afforded the benefit of the doubt and prevail upon the issue. 38 U.S.C. § 5107(b).

Resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's OSA reasonably was caused or aggravated by his service-connected conditions, considering obesity as an intermediate step. Accordingly, the Veteran's claim for service connection for OSA is granted.

2. Entitlement to service connection for low back disability

The Veteran contends that his back condition is due to his service-connected right ankle condition and his knee condition as well as his altered gait. His representative also argued that an article by the Mayo Clinic supported that people who are depressed are more susceptible to back pain. 

As to the direct service-connection test, the Veteran has the current disability of degenerative disc disease. See C&P Exam received February 2024. The Board notes that the Veteran had imaging of his back finding that the Veteran had mild to moderate disc related degenerative changes at L3 to L4 as well as other mild disc related degenerative changes. Id. Therefore, he meets the first prong of the direct service connection test, having at least a current disability.   

The Veteran also has several service-connected conditions including a right ankle condition and depression.  

Therefore, the main issue before the Board is whether the Veteran's back condition is directly related to service or secondary to a service-connected condition. 

In his February 2020 VA examination, the Veteran reported that he has had back trouble since 1980. He reported his back pain was exacerbated by bending over, prolonged sitting, standing, and lifting. He used a cane or walker, and a power scooter when he left his home. The Veteran reported that he had a right ankle condition that impacted his gait as well as a knee condition that also impacted his gait. See C&P Examination received February 2020. 

Then in May 2021, the Veteran had another VA examination. The Veteran reported that he believed his back pain was related to his knee and ankle joint problems. See C&P Examination received May 2021. Then in February 2024 the Veteran reported to his VA examiner that he had lower back pain in service which has continued until the present. See C&P Examination received February 2024. 

As for the opinions, the February 2020 examiner opined that the Veteran's back condition was much more likely associated with his right knee injury than the right ankle. The examiner stated that his right knee injury resulted in the need for ambulatory aids, and the use of a power scooter. See C&P Examination received February 2020. Then in October 2020 an addendum opinion stated it is less likely than not that the Veteran's low back disorder was proximately due to or aggravated by his right ankle condition. The examiner explained that the Veteran did not have long standing abnormal gait until after a motor vehicle accident that injured his right knee and affected his gait in 2005. The examiner opined that he had no aggravation of his back condition and that his lumbosacral strain has followed its natural progression. See C&P Examination received October 2020.

In May 2021, a VA expert opined that the back condition was less likely than not proximately due to or the result of a service-connected condition. The VA expert explained that there was no medical evidence that distal joints (such as the ankle) cause lumbar strains. The expert stated that the joint such as the knee that is most proximal to the spine is the most likely contributing factor to the lumbar strain especially when the knee joint injury, that the Veteran sustained, led to the need for a power scooter. Thus, the VA expert concluded that the Veteran's back condition was less likely than not proximately due to, or the result of residuals of the right ankle. See C&P Examination received May 2021. 

Then in February 2024, the Veteran had another VA examination. The examiner opined that the claimed condition was less likely than not caused by the claimed in-service event, injury or illness. The examiner explained that disc degeneration is directly correlated with increasing patients age and that it is also associated with the Veteran's occupation as a retired truck driver. Therefore, the examiner found that the claimed condition was less likely than not related to direct military service due to lack of chronicity to establish a nexus, but rather the condition was due to the aging process and the Veteran's occupation as a commercial truck driver. See C&P Examination received February 2024. The examiner also opined that the claim condition was less likely than not proximately due to or the result of the Veteran's service-connected right ankle condition. The examiner explained that there was no clear evidence from review of
 likely than not caused by the claimed in-service event, injury or illness. The examiner explained that disc degeneration is directly correlated with increasing patients age and that it is also associated with the Veteran's occupation as a retired truck driver. Therefore, the examiner found that the claimed condition was less likely than not related to direct military service due to lack of chronicity to establish a nexus, but rather the condition was due to the aging process and the Veteran's occupation as a commercial truck driver. See C&P Examination received February 2024. The examiner also opined that the claim condition was less likely than not proximately due to or the result of the Veteran's service-connected right ankle condition. The examiner explained that there was no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis or shortening of the injured limb, or so that the Veteran's gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. Thus, the examiner concluded that the lumbar spine disability was less likely than not related to the residuals of the right ankle fracture. Id.

The Board recognizes that the Veteran's records show that he has a service-connected right ankle condition with use of an ankle brace, cane, walker, and scooter. The February 2024 VA examination noted the constant use of a cane and the occasional use of a walker and occasional use of a scooter. While the Veteran has another complicating injury to the right lower extremity the examiner stated that the use of the cane, walker, and scooter was related to right ankle residuals. See C&P Examination received February 2024. 

While, on its face the medical opinions have not established a link or causation between the Veteran's lumbar spine disability and his service-connected conditions, several of the opinions were contradictory.   

The opinions in February 2020 and October 2020 both found that instead of the ankle the right knee joint was the more likely cause of his lumbar spine disability, noting that his knee condition caused him to use a cane, walker, and scooter. The May 2021 opinion opined that the knee was closer or more proximal to the back and as such was the more likely cause of the lumbar disability. Then the February 2024 opinion suggested that the Veteran's gait abnormality was not severe enough to cause his back condition. 

The Veteran has contended that his knee and his right ankle condition caused his back pain, including lumbar strain and degenerative disc disease. The Veteran has also reported ongoing pain related thereto.  

As the finder of fact, the Board considered all the evidence and finds that it is at least evenly balanced as to whether the Veteran's service-connected right ankle condition caused or aggravated his back disability. Several of the examiners directly related his back condition to gait issues, and use of a cane, scooter, and walker. The use of these assistive devices has been found to be at least partially related to his right ankle condition.  

The law is clear. 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 Veteran shall be afforded the benefit of the doubt and prevail upon the issue. 38 U.S.C. § 5107(b).

Resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's lumbar spine disability reasonably was caused or aggravated by his service-connected right ankle condition. Accordingly, the Veteran's claim for service connection for lumbar spine disability is granted.

Increased Rating

Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

In order to evaluate the level of disability and any changes in condition, it is
 will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal.

Functional loss and possible limitation of functional ability must be considered as well as whether there is additional range of motion (ROM) loss due to pain on use or during flare-ups. See Sharp v Shulkin, 29 Vet. App. 33 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, and incoordination must also be considered and, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 207 (1995); see also 38 C.F.R. §§ 4.45, 4.59. 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).

Accordingly, VA examinations for musculoskeletal issues are required to include joint testing for pain during both active and passive motion, weight bearing and non-weightbearing, and if possible, with range of motion measurement of the opposite undamaged joint, where an opposite joint exists. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016).

In rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each, and every piece of evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

In assigning a higher disability rating, VA is responsible for determining whether there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.  See 38 U.S.C. § 5107(b).  If there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter than the benefit-of-the-doubt rule applies, but the benefit
 Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

In assigning a higher disability rating, VA is responsible for determining whether there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.  See 38 U.S.C. § 5107(b).  If there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter than the benefit-of-the-doubt rule applies, but the benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).   

Entitlement to an increased rating for right ankle 

The Veteran contends that his service-connected right ankle condition warrants a higher rating.

The relevant DCs are as follows:

Under DC 5271, which is for limited motion of the ankle, a 10 percent rating is applied for moderate limitation to range of motion; and a 20 percent rating is applied for marked limitation to range of motion. See 38 C.F.R. § 4.71a.

Since February 7, 2021, the DC 5271 was amended to define a moderate limitation in the ankle as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and a marked limitation in the ankle as less than 5 degrees dorsiflexion or less than ten degrees plantar flexion. 38 C.F.R. § 4.71a, DC 5271.

Under DC 5270 for ankylosis of the ankle (same before and after the February 7, 2021 regulatory change), a 20 percent rating is warranted for plantar flexion of less than 30 degrees; a 30 percent rating is warranted for plantar flexion, between 30 degrees and 40 degrees, or dorsiflexion, between 0 degrees and 10 degrees; a 40 percent rating is warranted for plantar flexion at more than 40 degrees, or dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. Id.

Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II.

For clarity, the Board notes that prior to February 7, 2021, regulatory changes, the terms moderate limitation to range of motion and marked limitation to range of motion are not defined in DC 5271. The Board defines the term moderate limitation as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and the term marked as less than five degrees dorsiflexion or less than ten degrees plantar flexion.

In this case, the Veteran had a rating of 10 percent disabling since June 8, 2016, pursuant to DC 5271. 

The Board finds that a rating of 20 percent is supported by the evidence during the relevant period of the non-initial increased rating claim.

In November 2018, the Veteran had an ankle VA examination. The Veteran reported using a cane, walker, and scooter for knee and ankle issues since June 2018. He reported ankle pain with prolonged ambulation unrelated to his knee. See C&P Exam received November 2018.    

The November 2018 examiner reported that the Veteran had abnormal range of motion in the right ankle. The initial range of motion for his right ankle was zero to 5 degrees dorsiflexion and zero to 30 degrees plantar flexion. He had pain which limited his range of motion in both dorsiflexion and plantar flexion. He had pain in weight bearing and tenderness. The examiner did not provide an opinion as to reduced range of motion of repeated use over time and stated that flare ups were not indicated. The Veteran did not have muscle atrophy or ankylosis. After testing, joint instability was not suspected. The examiner reported that the Veteran regularly used a cane and walker. The examiner reported that his use of assistive devices was primarily for his knee but also secondary to his right ankle. Id.

The Veteran had another VA examination in March 2020. During that examination, the Veteran reported flares of pain in the right ankle precipitated by activity. He explained that he used a motorized scooter, walker, and stool in the shower. He explained that he constantly needed some
 bearing and tenderness. The examiner did not provide an opinion as to reduced range of motion of repeated use over time and stated that flare ups were not indicated. The Veteran did not have muscle atrophy or ankylosis. After testing, joint instability was not suspected. The examiner reported that the Veteran regularly used a cane and walker. The examiner reported that his use of assistive devices was primarily for his knee but also secondary to his right ankle. Id.

The Veteran had another VA examination in March 2020. During that examination, the Veteran reported flares of pain in the right ankle precipitated by activity. He explained that he used a motorized scooter, walker, and stool in the shower. He explained that he constantly needed some kind of assistive device. The examiner indicated that he was not able to test the Veteran's right ankle range of motion. The Veteran had pain during examination causing functional loss. He had swelling, muscle atrophy from disuse, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. He had reduced muscle strength but no ankylosis. He used a wheelchair, cane, and walker. See C&P Examination received March 2020. 

In January 2021, the Veteran had another ankle VA examination. See C&P Exam received January 2021. The January 2021 examiner reported that the Veteran had abnormal range of motion in the right ankle. The initial range of motion for his right ankle was zero to 10 degrees dorsiflexion and zero to 30 degrees plantar flexion. The examiner did not provide an opinion as to reduced range of motion of repeated use over time and stated that flare ups were not indicated. The Veteran did not have ankylosis. The examiner reported that the Veteran regularly used a cane, brace, and walker. He occasionally used a wheelchair. The examiner reported that the Veteran had imaging of his ankle showing arthritis. Id.

Then in February 2024, the Veteran again had a VA examination. The examiner reported that the Veteran had abnormal range of motion in the right ankle. See C&P Exam received February 2024. The initial range of motion for his right ankle was zero to 15 degrees dorsiflexion and zero to 35 degrees plantar flexion. On repeated use over time, the examiner opined that the Veteran's range of motion was zero to 15 degrees dorsiflexion and zero to 35 degrees plantar flexion. The examiner said flares were not indicated. The examiner reported that the Veteran had no muscle atrophy, and no ankylosis. The Veteran's right ankle had positive talar tilt testing and anterior drawer testing was not performed due to pain. The examiner reported that the Veteran constantly used a cane, occasionally used a walker, and occasionally used a scooter. Id.

There is no reasons or bases requirement imposed on medical examiners. An adequate medical report must rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question and facilitate the Board's consideration and weighing of the report against any contrary reports. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); see also, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding in the context of weighing one medical opinion with another that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion"); D'Aries, 22 Vet.App. at 104 ("An opinion is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions")).

The Board notes that the November 2018 examination did not provide an opinion as to reduced range of motion on repeated use over time. That the March 2020 examination did not provide range of motion findings. That the January 2021 examination did not provide an opinion as to reduced range of motion on repeated use over time or with flares. These examinations are being considered in combination with all the evidence. It is noted that these examinations were inadequate as to specific range of motion findings that were not made with the examination. However, the examinations are still otherwise competent, credible, and highly relevant with the exception of the lack of adequate findings for reduced range of motion estimations. 

The February 2024 examination provided
 weigh against contrary opinions")).

The Board notes that the November 2018 examination did not provide an opinion as to reduced range of motion on repeated use over time. That the March 2020 examination did not provide range of motion findings. That the January 2021 examination did not provide an opinion as to reduced range of motion on repeated use over time or with flares. These examinations are being considered in combination with all the evidence. It is noted that these examinations were inadequate as to specific range of motion findings that were not made with the examination. However, the examinations are still otherwise competent, credible, and highly relevant with the exception of the lack of adequate findings for reduced range of motion estimations. 

The February 2024 examination provided initial range of motion as well as range of motion estimates for repeated use over time and explained that the Veteran did not report flares. The Board finds the February 2024 examination competent, credible, and highly relevant. 

As to all the evidence, the Board finds that while some examinations are not fully adequate that the Board has sufficient evidence considering all the evidence available to rate the Veteran's right ankle condition during the relevant period. 

In particular, the Board notes that in November 2018 the Veteran had zero to five degrees of dorsiflexion on initial examination.

The Board recognizes that the Veteran's range of motion testing is not below five degrees dorsiflexion but that no opinion was rendered as to limited function on repeated use over time. The Board herein is rating the Veteran's right ankle at the marked level because of his range of motion combined with his symptoms on repeated use over time. Furthermore, the Board notes that he reported using a cane and walker at least partially due to his right ankle. There is no higher rating for the right ankle for limitation of motion under DC 5271.

Moreover, the medical evidence of record shows that ankylosis has not been present at any point during the appeal period.

The Board also considered whether the Veteran's right ankle was functionally equivalent to DC 5270, ankylosis of the ankle. In Chavis v. McDonough, 34 Vet. App. 1, 33-34 (2021), the Court found that when evaluating a disability under the General Rating Formula, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that which is contemplated by ankylosis. His examination found that he had zero to five degrees dorsiflexion and zero to 30 degrees plantar flexion in his right ankle. His symptoms during repeated use over time do not appear to be functionally equivalent to having an immobile or fully stiffened ankle. Moreover, his issue with ambulation due to his right lower extremity is complicated by injuries to his right knee which are not service connected. Even though the Veteran has reported reduced range of motion in the right ankle, the Board does not find that the evidence supports the equivalence of ankylosis. Additionally, as noted above, he was already rated on limitation of motion at 20 percent rather than 10 percent under DC 5271 considering his symptoms on repeated use over time, on flares, and considering weakened movement, excess fatigability, and incoordination.

The Board also considered whether any other Diagnostic Codes would be applicable, but no other applicable Diagnostic Codes would result in the Veteran receiving an increase in his right ankle rating. Therefore, considering the evidence of record, the Board finds that a higher rating than 20 percent is not supported.

In conclusion, looking at the record as a whole, the Veteran's service-connected right ankle disability is properly awarded an increased evaluation under DC 5271 of 20 percent, but no higher. Accordingly, the Veteran is awarded a rating of 20 percent for the right ankle disability.

 

 

B. MULLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Parnell, C. E.

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.