Citation Nr: 1752478 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-16 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial disability rating greater than 10 percent for service-connected left ankle osteoarthritis prior to April 17, 2017, and to a disability rating in excess of 20 percent from April 17, 2017, forward. 2. Entitlement to an initial disability rating greater than 10 percent for service-connected right ankle osteoarthritis prior to April 17, 2017, and to a disability rating in excess of 20 percent from April 17, 2017, forward. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy during the Gulf War Era from May 1999 to July 2007. This case comes on appeal to the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In September 2016, the Veteran testified via a video-conference hearing before the undersigned Veteran's Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. The Board remanded the Veteran's claims on appeal for additional development in February 2017. While the case was in remand status, in a July 2017 rating decision, the RO increased the rating for the Veteran's right and left ankle disabilities to 20 percent, effective April 17, 2017. Since this is not considered a full grant of the benefit sought on appeal, because the 20 percent was not granted for the entire appellate period, these issues are still before the Board. FINDINGS OF FACT 1. Prior to April 17, 2017, the Veteran's right and left ankle disabilities were manifested by marked limited motion. 2. For the entire appellate period, the Veteran's right and left ankle disabilities have not been manifested by ankylosis. CONCLUSIONS OF LAW 1. Prior to April 17, 2017, the criteria for an initial 20 percent rating for a right ankle disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2016). 2. Prior to April 17, 2017, the criteria for an initial 20 percent rating for a left ankle disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2016). 3. For the entire appellate period, the criteria for a disability rating in excess of 20 percent for a right ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2016). 4. For the entire appellate period, the criteria for a disability rating in excess of 20 percent for a left ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal concerns the initial evaluation assigned a service-connected disability, VA assesses the level of disability from the effective date of service connection. See Fenderson v. West, 12 Vet. App. 119, 125 (1999); 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2017). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings. In making all determinations, the Board must fully consider the lay statements of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, 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 Veteran's claims. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Under Diagnostic Code 5271 for rating limited motion of the ankle, moderate limitation of motion of the ankle warrants a 10 percent rating and marked limitation of motion of the ankle warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2016). Standard range of ankle dorsiflexion is from zero to 20 degrees, and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II (2016). The terms slight, moderate, and marked are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just, and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6 (2016). II. Evidentiary Background The Veteran received a bilateral ankle MRI in January 2007. The impression was mild degenerative changes bilaterally, likely due to biomechanics related to pes planus. The Veteran's ankles were assessed in July 2010. At the exam, it was noted that the Veteran had ankle discomfort throughout his military service and began using Tylenol on a regular basis to control pain that could get as bad as an eight or nine on a scale of one to 10. The Veteran reported swelling and having to ice his ankles. The Veteran limited his walking because it could result in back pain. Upon examination of his ankles, it was noted that laxity was diminished bilaterally. The Veteran exhibited 15 degrees of flexion, 15 degrees of dorsiflexion, 15 degrees of inversion, and 10 degrees of eversion bilaterally. Following three repetitions, there was no additional limitation in joint function or range of motion due to pain, fatigue, or weakness or lack of endurance. The examiner characterized the Veteran's ankle disability as moderately severe. In an August 2011 Notice of Disagreement, the Veteran stated that his symptoms had worsened since his July 2010 VA exam. The Veteran also argued that he has had ankylosis of the ankle since a January 2006 MRI. He also stated that treatment records from VA Palo Alto Podiatry clinic would show a marked limitation of motion. The Veteran was seen in May 2013 at Sutter Health. At that time, the Veteran complained of pain in both feet. It was noted that he was last seen in October 2012 and diagnosed with posterior tibial tendinitis. The examiner recommended an elastic ankle support along with an over-the-counter arch support for the Veteran to wear in his work shoes. The Veteran reported that the arch supports did not fit well inside his work shoes. It was recorded that the Veteran occasionally took a nonsteroidal anti-inflammatory drug. The Veteran's musculoskeletal exam showed pain with resistance to plantar flexion and inversion bilaterally. Pain was recorded at the level of the navicular at the insertion of the posterior tibial tendon with pain along the medial longitudinal arch bilaterally. A weight-bearing exam showed significant midfoot collapse with subtalar joint pronation. It was assessed that the Veteran's posterior tibial tendinitis was secondary to his significant flat foot deformity. At his September 2016 hearing, the Veteran testified that he suffered from pain when trying to walk up or down stairs or when walking. The Veteran was seen for chronic pain in his ankles during a September 2016 podiatry consult. It was noted that the pain had persisted for longer than 10 years. The Veteran noted that he tried stretching exercises and physical therapy, but these did not help with his pain. He rated the pain at a five out of a scale of one to 10 and felt pain whenever he weight-bears or exercises. The Veteran stated that he ices, elevates, and takes Motrin in order to relieve his pain. The Veteran also reported swelling. The Veteran's left ankle dorsiflexion was five degrees past 90. Right ankle joint dorsiflexion was zero degrees past 90. The Veteran received another examination in April 2017. He received diagnoses of lateral collateral ligament sprain of the left ankle and osteoarthritis of the ankles bilaterally. Since his 2013 VA exam, it was determined that the pain the Veteran experienced in his ankles had worsened. It was documented that the Veteran experienced flare-ups and constantly used braces bilaterally. He could not tolerate running or sports. He did use a stationary bike for exercise. His flare-ups were triggered by anything physical, which occurred five days a week with severe flare-ups occurring about three times per month. The Veteran reported functional loss due to having to limit his walking and stairclimbing. Upon examination of his ankles, it was noted that laxity was diminished bilaterally. The Veteran exhibited zero degrees of dorsiflexion and 40 degrees of plantar flexion bilaterally. His abnormal range of motion resulted in functional loss due to having difficulty in taking a full stride. The examiner also found pain on weight bearing and localized tenderness or pain on palpation of the joint. Pain severely limited functional ability to zero degrees of dorsiflexion and zero degrees of plantar flexion bilaterally. Intermittent swelling was another symptom the Veteran experienced bilaterally. No reduction of muscle strength was found. No muscle atrophy was found. Ankylosis was not found in either the right or left side. His right ankle exhibited instability or dislocation with no laxity. However, his left ankle exhibited instability or dislocation with laxity. The examiner noted that the Veteran's condition affected his ability to perform occupational tasks. The examiner stated that the Veteran had been recently laid off as an inspector for a satellite company, which required that he climb ladders and crawl under equipment. The Veteran had no absenteeism and was still able to do his job but at a much slower pace than his colleagues. The examiner also opined that the Veteran's bilateral osteoarthritis represented progression of his service-connected left ankle strain. In May 2017, the Veteran received an MRI for his ankles. The impression was mild anterior tibial tendinosis without acute tendon tear or tenosynovitis and mild navicular-medial cuneiform osteoarthritis with pes planus and hind-foot valgus. It was also noted that an April 2017 radiograph suggested early mild tibiotalar joint osteoarthritis. The Veteran was further examined in July 2017. The Veteran reported pain of five on a scale of one to 10. Upon examination of his right ankle, the Veteran exhibited 26 degrees of plantar flexion, four/seven degrees of dorsiflexion, 18 degrees of inversion, and 16 degrees of eversion. III. Analysis For the appellate period prior to April 17, 2017, in order to qualify for a disability rating in excess of 10 percent under Diagnostic Code 5271, the evidence would have to show that the Veteran's bilateral ankle disability resulted in marked limited motion of the ankles. 38 C.F.R. § 4.71a, DC 5271. The Board concludes that the Veteran's disability picture is more consistent with marked limitation of motion. The July 2010 VA examination showed that the Veteran had plantar flexion only to 15 degrees; whereas the standard is 45 degrees. Even more limited range of motion was noted in September 2016. Additionally, the Veteran's ankle symptoms rise to the level of a "marked" disability because he suffers from pain resulting in functional loss. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, for the appellate period prior to April 17, 2017, the Board finds that a 20 percent rating is warranted for each ankle under DC 5271. The highest available rating under Diagnostic Code 5271 is 20 percent, which the Veteran has now been assigned for the entire period currently on appeal. Because 20 percent is the maximum rating for limitation of motion of the ankle, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A higher rating is available under Diagnostic Code 5270, but only if the Veteran's ankles are ankylosed. Diagnostic Code 5270 instructs that a 30 percent rating be assigned for ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A 40 percent rating is assigned for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a , Diagnostic Code 5270. Here, however, there have been no findings of ankylosis of either ankle. In his August 2011 Notice of Disagreement, the Veteran asserted that he has had ankylosis of the ankles since a January 2006 MRI. However, a review of those records, which were received on June 16, 2011, does not show a diagnosis or finding of ankylosis of either ankle. Further, the April 2017 VA examiner specifically found that ankylosis was not present. Thus, the preponderance of the evidence is against entitlement to a disability rating in excess of 20 percent for either ankle. ORDER Prior to April 17, 2017, entitlement to an initial disability rating of 20 percent, but no higher, for service-connected right ankle osteoarthritis is granted. Prior to April 17, 2017, entitlement to an initial disability rating of 20 percent, but no higher, for service-connected left ankle osteoarthritis is granted. From April 17, 2017, forward, entitlement to an initial disability rating in excess of 20 percent for service-connected right ankle osteoarthritis is denied. From April 17, 2017, forward, entitlement to an initial disability rating in excess of 20 percent for service-connected left ankle osteoarthritis is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs