Citation Nr: 18160667
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 08-32 951
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a dental disorder, to include hyperkeratosis status-post graft #20, is denied.
Entitlement to an initial compensable rating prior to August 5, 2013, and in excess of 20 percent thereafter, for service-connected left foot, plantar fasciitis is denied.
REMANDED
Entitlement to service connection for a right elbow disorder is remanded.
Entitlement to service connection for a right ankle disorder, to include as secondary to service-connected left ankle injury, residuals, postoperative (left ankle disability) is remanded.
Entitlement to an initial rating in excess of 10 percent for service-connected left ankle disability is remanded.
Entitlement to an initial rating in excess of 10 percent for service-connected surgical scars, left ankle is remanded.
Entitlement to an initial rating in excess of 10 percent for service-connected lumbosacral strain with degenerative traumatic arthritis of the spine (lumbar spine disability) is remanded.
FINDINGS OF FACT
1. The Veteran does not have dental condition, other than temporomandibular dysfunction, for which compensation may be granted, nor does he have a dental condition or disability as a result of trauma during his active military service.
2. Prior to August 5, 2013, the Veteran’s service-connected left foot plantar fasciitis was not manifested by weight-bearing over or medial to the great toe and inward bowing of the tendo achillis; or a moderate left foot disability.
3. From August 5, 2013, to the present, the Veteran’s service-connected left foot plantar fasciitis was not manifested by evidence of marked deformity of the foot, including pronation, and inward bowing or severe spasm of the tendo achillis; or a severe left foot disability.
CONCLUSIONS OF LAW
1. The criteria for service connection for a dental disorder, to include hyperkeratosis status-post graft #20, for purposes of compensation are not met. 38 U.S.C. §§ 1110, 1721, 5107 (2012); 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161 (2018). 
2. The criteria for an initial compensable rating prior to August 5, 2013, and in excess of 20 percent thereafter, for service-connected left foot plantar fasciitis are not met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5284 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 2000 to March 2007.
With regard to the Veteran’s claim for service connection for a dental disorder, the Board notes that service connection may be awarded for dental conditions for (1) compensation benefits, or (2) outpatient dental treatment purposes. Claims for outpatient dental treatment submitted to VBA should be referred to the Veterans Health Administration (VHA) for preparation of a dental treatment rating. See also 38 C.F.R. § 3.381 (2018).  Included in the Veteran’s claim for service connection for a dental disorder is a claim for service connection for outpatient dental treatment purposes.  See Mays v. Brown, 5 Vet. App. 302 (1993) (any claim for service connection for a dental condition is also a claim for VA outpatient dental treatment). The Board lacks jurisdiction over that claim, as the agency of original jurisdiction (AOJ) has only adjudicated the issue of entitlement to service connection for a dental condition. The AOJ should refer the inferred claim for dental treatment purposes to VHA for appropriate action, if such has not been done already.
In a September 26, 2018 letter, the Veteran’s attorney requested a copy of the Veteran’s claims file.  The entire claims file was sent to the Veteran’s attorney on October 15, 2018.  On October 17, 2018, the Veteran’s attorney requested a 30-day extension of time from the time she received a copy of the claims file.  As the file was mailed to the Veteran’s attorney two days earlier, the Board granted this 30-day extension.  The time period has now expired, and neither the Veteran nor his attorney has submitted additional evidence.  The Board will proceed with adjudication, as it is clear from the record the Veteran’s attorney both received the claims file, and was afforded the requested 30-day extension.  
I. Service Connection for Dental Disorder
The Veteran claims entitlement to service connection for a dental disorder.  Specifically, the Veteran claims entitlement to service connection for a gum disorder following an in-service graft of the #20 tooth.  See May 2007 VA Form 21-526, Veteran’s Application for Compensation and/or Pension.  The Board notes that service connection for temporomandibular dysfunction has already been awarded. 
The question for the Board is whether the Veteran has a current dental disability other than temporomandibular dysfunction that began during service or is at least as likely as not related to an in-service injury, event, or disease.
The Board concludes that the Veteran does not have a dental condition other than temporomandibular dysfunction for which service connection may be established.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 4.150; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).
Service connection for a dental claim for compensation purposes can be established only for the specific types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla.  Compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible. See Simmington v. West, 11 Vet. App. 41 (1998).  For loss of teeth, bone loss through trauma or disease such as due to osteomyelitis must be shown for purposes of compensability.  The loss of the alveolar process as a result of periodontal disease is not considered disabling. See Note to Diagnostic Code 9913, 38 C.F.R. § 4.150.
Service treatment records reflect that the Veteran underwent a tissue graft of the #20 tooth in April 2006.
A July 2007 VA examination noted the Veteran’s reports of pain in his jaw that began after he underwent a periodontal graft of the #20 tooth during service.  At that time, examination of the graft showed a slight hyperkeratosis-appearance to the graft, which was determined to be within normal limits.
An October 2007 VA examination addendum noted that the in-service graft was necessitated by some loss of gingiva and bone when the Veteran’s #19 tooth was extracted.  No other periodontal problems were noted.
A February 2012 VA examination noted that there was no history of trauma to the teeth; loss of a portion of, or malunion or nonunion of, the maxilla; loss of a portion of, or malunion or nonunion of, the mandible; loss of bone of the hard palate; or evidence of osteoradionecrosis or osteomyelitis.
A June 2017 VA examination noted the Veteran’s history of a buccal abfraction/recession on tooth #20 during service that necessitated a connective tissue graft in April 2006.  However, the examiner noted that there was no evidence of loss of a portion, malunion, or nonunion of the maxilla; loss of a portion, malunion, or nonunion of the mandible; loss of teeth for reasons other than periodontal disease; or evidence of osteoradionecrosis or osteomyelitis of the mandible.
Based on the evidence of record, the Board finds that service connection is not warranted under 38 C.F.R. § 4.150.  Initially, although the evidence shows that the Veteran has temporomandibular dysfunction, service connection for that disability has been granted.  With regard to the other types of dental and oral conditions listed under 38 C.F.R. § 4.150, there is no indication that the Veteran’s claimed disorder involves bone loss in the maxilla or mandible region.  Moreover, there is nothing indicating actual bone loss or other maxillary impairment that causes him to lose teeth, nor has any treatment record indicated such impairment.  While the Veteran underwent a periodontal graft of the #20 tooth during service, there is no indication that his dental issues were related to an in-service dental trauma, or that his dental condition involves bone loss in the mandible or maxilla.  Thus, service connection may not be established for compensation purposes.  
Beyond the Veteran’s currently service-connected temporomandibular dysfunction, the Board is prohibited by law from awarding service connection for compensation purposes, for any other dental problems without evidence of underlying bone disease or loss, or prior evidence of in-service trauma, and his claim must be denied.
II.  Initial Rating for Service-Connected Left Foot, Plantar Fasciitis
Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. 
A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994).  However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999).
The Veteran’s service-connected left foot plantar fasciitis is currently rated as noncompensable prior to August 5, 2013, and as 20 percent disabling thereafter, under Diagnostic Code 5276.
Pursuant to Diagnostic Code 5276, a 10 percent rating is assigned for moderate symptoms of bilateral or unilateral pes planus, manifested by the weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet.  A 20 percent rating is assigned for severe unilateral pes planus, manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A maximum 30 percent rating is assigned for pronounced unilateral pes planus, manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and the disability is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a , Diagnostic Code 5276. 
The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive “or” requirement must be met in order for an increased rating to be assigned); see also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable).
“Other foot injuries” not otherwise described by the criteria for rating foot disability codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5283, are rated as 10 percent disabling for a moderate disability, 20 percent disabling for a moderately-severe disability, and 30 percent disabling for a severe disability. 38 C.F.R. § 4.71a, Diagnostic Code 5284.
The words “slight,” “moderate,” “and “severe,” as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6 (2018). 
In Copeland v. McDonald, 27 Vet. App. 333 (2015), the Court addressed the application of Diagnostic Code 5284 when a Veteran’s service-connected foot disability was specifically provided for in the schedular rating criteria. In that case, VA argued that because pes planus was specifically addressed by Diagnostic Code 5276, and hallux valgus was specifically addressed by Diagnostic Code 5280, to rate those foot disabilities under Diagnostic Code 5284 would be rating by analogy, which is not permitted when there is a diagnostic code that is specifically labeled with the name of a particular condition. The Court agreed, holding that to rate under Diagnostic Code 5284, for “Foot injuries, other,” would not be rating by analogy, as to do so would ignore the plain meaning of the term “other,” and would make the remaining eight foot-related Diagnostic Codes redundant.
Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).
An August 2006 Report of Medical History noted the Veteran’s complaint of left foot pain following his in-service left ankle surgeries.
In July 2007, the Veteran underwent a VA examination of his left foot.  He reported that he sometimes felt pain over his instep or heel following his in-service ankle injury, and that it usually occurred when he stepped out of bed in the morning.  His indicated that the pain improved by moving around.  He stated that his left foot disorder caused no effect on his occupation or usual daily activities, his ability to ambulate was not limited, and that there was no decrease in range of motion or functional ability during morning flare-ups.  Upon examination, there was normal strength, and the Veteran was able to walk on his tip toes and heels without difficulty and without pain.  His gait was normal, and that there was no guarding of movement.  There was mild tenderness over his heel anteromedially and over the mid-metatarsal area, but no swelling, deformities, or instability.  He was diagnosed with left foot plantar fasciitis.
A December 2009 VA treatment record noted the Veteran’s report of pain in the heel of his left foot.
A February 2012 VA examination report noted that the Veteran developed plantar fasciitis on an insidious basis without any specific injury.  He was treated with shoe inserts, which actually worsened his left foot pain.  He indicated that his did not use the inserts any more.  He indicated that his left foot pain was constant.  Examination revealed tenderness throughout, and there was no evidence of deformity.  The examiner noted that that the Veteran’s plantar fasciitis was previously treated with inserts, that he did not experience any relief, and that he continued to experience pain.
A June 2013 VA treatment record noted the Veteran’s report of pain in the bottom of his left foot, and that it was worse after resting.  He described the pain as constant, and stated that it affected all areas of his life.  There was no evidence of swelling or redness upon examination.
In February 2014, the Veteran underwent another VA examination.  The examiner noted the presence of pain, and that pain was accentuated on use and with manipulation.  There was also evidence of swelling, but no evidence of characteristic calluses.  The Veteran’s symptoms were noted to be relieved by arch supports.  There was evidence of extreme tenderness of plantar surface, and the tenderness was not improved by orthopedic shoes or appliances.  There was a decreased longitudinal arch height with weight-bearing, and the weight bearing line fell over or medial to the great toe; however, there was no objective evidence of marked deformity of the foot, including pronation or abduction, and there was no lower extremity deformity other than pes planus, causing alteration of the weight bearing line.  There was no inward bowing or severe spasm of the Achilles’ tendon.  There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms related to the Veteran’s plantar fasciitis, and pain was determined to significantly limit the Veteran’s functional ability during flare-ups or following repetitive use.  With regard to the impact that the Veteran’s plantar fasciitis had on his ability to work, the examiner noted that the Veteran would not be able to lift more than 50 pounds, that he could walk less than a mile at one time or throughout the day, that he could sit for only two hours, that he could stand for only thirty minutes.  Furthermore, the examiner noted that the Veteran had to minimize walking when he experienced a flare-up due to increased pain.
In June 2017, the Veteran underwent another VA examination, and reported that he noticed pain in his left arch gradually after his in-service ankle injury.  He described pain anterior to his heel extending forward through his arch.  He stated that his pain was worse in the morning when he woke up, and that it got better as the day went on, although he had pain when walking.  He stated that he tried arch supports, but that they made his pain worse, so he stopped using them, and used supportive shoes instead.  He denied flare-ups, but stated that he experienced pain with prolonged standing or walking, or when wearing electrician’s boots.  The examiner noted the presence of pain, and that pain was accentuated on use and with manipulation.  There was no indication of swelling or characteristic calluses.  The Veteran’s symptoms were not relieved by arch supports.  There was no evidence of extreme tenderness of plantar surface; evidence of a decreased longitudinal arch height with weight-bearing; objective evidence of marked deformity of the foot, including pronation or abduction; evidence that the weight bearing line fell over or medial to the great toe; or evidence of a lower extremity deformity other than pes planus, causing alteration of the weight bearing line.  There was no inward bowing or severe spasm of the Achilles’ tendon.  There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms related to the Veteran’s plantar fasciitis.  The examiner noted the presence of pain, and that pain contributed to functional loss.  The examiner indicated that contributing factors of the Veteran’s disability included pain on movement, pain on weight-bearing and nonweight-bearing, disturbance in locomotion, and interference with standing.  Furthermore, the examiner noted that the Veteran required periods of rest following repetitive use.
After a careful review of all the evidence, the Board finds that, prior to August 5, 2013, the Veteran’s service-connected left foot plantar fasciitis did not more nearly approximate the criteria for an initial compensable rating under any applicable diagnostic codes.
With regard to Diagnostic Code 5276, as noted above, the criteria are conjunctive, see Melson, supra, and there is no evidence suggesting that the Veteran’s service-connected left foot plantar fasciitis was manifested by weight-bearing over or medial to the great toe or inward bowing of the tendo achillis, despite the presence of pain on use.  In fact, both the July 2007 and February 2012 VA examiners indicated that there was no evidence of deformities.  Thus, a compensable rating is not warranted under Diagnostic Code 5276 prior to August 5, 2013.
With regard to Diagnostic Code 5284, the Board finds that the Veteran’s foot disability was no more than mild prior to August 5, 2013.  The overall evidence shows that the Veteran’s plantar fascitis was primarily manifested by his complaints of pain.  However, the July 2007 VA examiner noted that the Veteran displayed normal strength, that he was able to walk on his tip toes and heels without difficulty, that his gait was normal, and that there was no evidence of guarding of movement.  Furthermore, during the July 2007 VA examination, the Veteran specifically indicated that his left foot plantar fasciitis did not affect his occupation or usual daily activities, that his ability to ambulate was not affected, and that there was no decreased in functional ability, even during flare-ups.  Subsequent treatment records continue to note the Veteran’s reports of left foot pain; however, there is nothing to suggest that his left foot plantar fasciitis resulted in functional effects that more nearly approximate a moderate disability.   Therefore, for the period prior to August 5, 2013, the Board finds that an initial compensable rating for moderate foot disability is not warranted under Diagnostic Code 5284. 38 C.F.R. § 4.71a.
For the period from August 5, 2013, to the present, the Board finds that the Board finds that the Veteran’s service-connected left foot plantar fasciitis did not more nearly approximate the criteria for rating in excess of 20 percent under any applicable diagnostic codes.
With regard to Diagnostic Code 5276, as noted above, the criteria are conjunctive, see Melson, supra, and a 30 percent rating requires evidence of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and that the disability is not improved by orthopedic shoes or appliances.  Here, while the February 2014 VA examiner noted the presence of extreme tenderness of plantar surface, and the tenderness was not improved by orthopedic shoes or appliances, there was no objective evidence of marked deformity of the foot, including pronation, and there was no inward bowing or severe spasm of the tendo achillis.  Furthermore, while the June 2017 VA examiner noted that the Veteran’s symptoms were not relieved by arch supports, there was no evidence of extreme tenderness of plantar surface; objective evidence of marked deformity of the foot, including pronationtion; or inward bowing or severe spasm of the Achilles’ tendon.  Thus, a rating in excess of 20 percent from August 5, 2013, to the present is not warranted under Diagnostic Code 5276.
Insofar as the symptoms associated with the Veteran’s service-connected left foot plantar fasciitis are contemplated by his 20 percent disability assigned from August 5, 2013, assigning a separate rating under Diagnostic Code 5284 would constitute impermissible “pyramiding,” or employing the rating schedule as a vehicle for compensating the Veteran twice for the same symptomatology.  38 C.F.R. § 4.14 (2018); see also Copeland, supra.  However, the Board has also considered whether simply rating the Veteran’s service-connected left foot plantar fasciitis under Diagnostic Code 5284 would be more beneficial.  As noted above, a higher 30 percent disability rating under Diagnostic Code 5284 would require there to be “severe” foot disability.  In this regard, the February 2014 VA examiner noted that, although the Veteran’s service-connected left foot plantar fasciitis impacted his ability to work, he was still able to lift 50 pounds, walk less than a mile at one time or a mile during an eight-hour day, sit for two hours at a time, stand for 30 minutes at a time, and sit or stand for eight hours during an eight-hour day.  The June 2017 VA examiner noted the Veteran’s reports of pain with prolonged standing or walking; however, in terms of whether his service-connected left foot plantar fasciitis impacted his ability to work, the examiner only noted that he was unable to wear electrician’s boots or other flat-soled shoes for prolonged periods.  As such, the Board finds that the Veteran’s service-connected left foot plantar fasciitis was not manifested as a “severe” disability as contemplated under Diagnostic Code 5284.
In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating prior to August 5, 2013, and in excess of 20 percent thereafter, for his service-connected left foot plantar fasciitis.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the assignment of a higher rating as any point during the appeal period, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
REASONS FOR REMAND
1. Service Connection Claims
In March 2017, the Bord remanded the Veteran’s claims for service connection for a right elbow disorder and a right ankle disorder so that he could be afforded VA examinations to determine whether any diagnosed disorders were related to his military service.
In June 2017, the Veteran underwent VA examinations.  With regard to his right elbow, the examiner noted that the Veteran did not have a current diagnosis associated with his claimed right elbow disorder.  Because there was no abnormality upon physical examination, the examiner stated that she could not provide a diagnosis nor an opinion.
The Board notes, however, that the Veteran was previously diagnosed with right elbow contusion during the July 2007 VA examination, and a mild right elbow strain during the February 2012 VA examination.  In this regard, in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Thus, even though a right elbow disorder was not present during the June 2017 VA examination, the July 2007 and February 2012 VA examination reports suggest the presence of a chronic right elbow disability during the period under review.  Thus, an opinion is necessary to adequately resolve the Veteran’s claim.
With regard to the Veteran’s right ankle disorder, the June 2017 VA examiner noted the diagnosis of a lateral collateral ligament sprain (chronic/recurrent), the Veteran’s report of developing right ankle pain one to two years after the in-service injury to his service-connected left ankle disability, as well as the August 2006 in-service finding of crepitus in the bilateral ankles.  The examiner concluded that the etiology of the Veteran’s right ankle condition could not be determined, as there were no treatment records for a right ankle condition in service, nor was there a complaint of ankle pain on his discharge examination.  The examiner also noted that the only mention of the right ankle in the Veteran’s service treatment records is a finding of right ankle crepitus on his discharge examination.
A November 2017 VA examination noted the Veteran’s report of a right ankle disorder as secondary to his service-connected left ankle disability.  He argued that he was favoring his service-connected left ankle disability and, therefore, had put additional strain on his right ankle.  This argument is similar to the Veteran’s complaint during his July 2007 VA examination when the Veteran stated that he had no specific injuries to the right ankle, but that pain came gradually due to compensating for the left.  The November 2017 examiner opinioned that the Veteran’s right ankle disorder was less likely than not related to his military service, reasoning that there was no evidence of chronicity regarding a right ankle condition while in service, and the discharge examination showed no evidence of a complaint of a right ankle condition.  No opinion was offered as to whether the Veteran’s right ankle disorder was secondary to his service-connected left ankle disability.
Unfortunately, the Board finds that the June 2017 and November 2017 opinions are insufficient to decide the Veteran’s claim for service connection for a right ankle disorder. Initially, the Board notes that the opinions fail to reflect any consideration of the Veteran’s statements concerning the onset and continuity of right ankle symptoms, and instead rely upon the absence of objective medical evidence of a chronic right ankle disorder in the Veteran’s service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007).  Moreover, insofar as the Veteran has raised the issue of entitlement to service connection for a right ankle disorder on a secondary basis, the Board notes that no VA examiner has addressed that question.
When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  To ensure that any opinion provided is based upon a review of all pertinent evidence, to include the Veteran’s lay statements concerning the onset and continuity of symptoms, as well as all theories of entitlement, the Board finds that a new examination is necessary.
2. Initial Rating Claims
While the record contains contemporaneous VA examinations addressing the current nature and severity of the Veteran’s service-connected left ankle and lumbar spine disabilities, the examination reports do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  As it relates to the Veteran’s lumbar spine disability, the June 2017 VA examiner stated that pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability following repeated use and during flare-ups; however, she stated that she was unable to describe the functional loss in terms of range of motion because the Veteran was not being examined following repetitive use or experiencing a flare-up at the time of the examination.  
As it relates to the Veteran’s left ankle disability, the June 2017 VA examiner stated that pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability following repeated use; however, she stated that she was unable to describe the functional loss in terms of range of motion because he was not being examined following repetitive use at the time of the examination.  The November 2017 VA examiner also noted that pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability following repeated use; however, she also stated that she was unable to describe the functional loss in terms of range of motion.
As there is no indication that the June 2017 or November 2017 VA examiners attempted to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups or following repetitive use, the Board finds that he should be afforded new VA examinations to comply with the Court’s holding in Sharp, supra.
Finally, as the Board noted in its March 2017 remand, the Veteran’s claim for an initial rating in excess of 10 percent for his service-connected surgical scars, left ankle, is intertwined with his claim for a higher rating for his service-connected left ankle disability.  As such, a remand of this issue is required.
On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through September 28, 2018, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent evidence.
The matters are REMANDED for the following action:
1. Associate any VA treatment records dated after September 28, 2018 with the Veteran’s claims file.
2. Give the Veteran an opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization.
3. After completing the above development, the Veteran should be afforded a new VA examination to determine whether his right elbow disorder is related to his military service, as well as whether his right ankle disorder is related to his military service or secondary to his service-connected left ankle disability. The entire record should be sent to, and reviewed by the VA examiner.  The examiner should take a history from the Veteran as to the progression of his right elbow and right ankle symptoms.  Any indicated evaluations, studies, and tests should be conducted.
Following a review of the entire record, to include the Veteran’s lay statements concerning onset and continuity of symptomatology, the examiner(s) should address the following questions:
a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right elbow disorder, diagnosed as a contusion during the June 2007 VA examination report and a mild right elbow strain during the February 2012 VA examination, had its onset in, or is otherwise related to his period of active duty service, to include the April 2002 injury to right elbow?  If the Veteran’s right elbow disability has resolved, an opinion should still be provided with regarding the prior diagnoses above.
b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right ankle disorder had its onset in, or is otherwise related to his period of active duty service? 
In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements regarding in-service incurrence and continuity of symptomatology, and any opinion provided must reflect such consideration.
c) Regardless of the answers provided to question b), is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right ankle disorder was caused or aggravated beyond its natural progression by his service-connected left ankle disability? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered.
A complete rationale must be provided for all opinions provided.
4. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected lumbar spine disability and left ankle disability. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted.
The examiner must address each of the following inquiries:
a) The examiner should describe all symptoms associated with the Veteran’s service-connected lumbar spine disability and left ankle disability.  
b) For the Veteran’s lumbar spine and left ankle, the examiner should test for pain in active motion, passive motion, weight-bearing, and nonweight-bearing.  If such testing cannot be completed, an explanation should be provided as to why this is so.
c) For the Veteran’s lumbar spine and left ankle, the examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use.  Even if the Veteran is not experiencing a flare-up at the time of the examination or examined following repetitive use, the examiner must elicit relevant information as to his history of flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use. 
For each joint where the examination does not occur during a flare-up, the examiner should estimate the functional loss, including loss of range of motion, due to flare-ups or following repeated use based on all the evidence of record including the Veteran’s lay statements. If the examiner cannot provide the above-requested opinion 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 medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).
A clearly-stated rationale for any opinion offered must be provided.

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5. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated.  If the benefits sought on appeal are not granted, the Veteran and his attorney should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. 

 
V. Chiappetta
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	James R. Springer, Associate Counsel 

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For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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