Citation Nr: 1753833	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  10-30 204	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 percent for status post right ankle fracture with open reduction internal fixation (right ankle disability).

2.  Entitlement to a separate, compensable rating for manifestations associated with right ankle disability, other than limitation of motion.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran and her spouse



ATTORNEY FOR THE BOARD

H. Daus, Associate Counsel


INTRODUCTION

The Veteran had qualifying service from January 1985 to February 2009.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In February 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  

In October 2014, December 2016, and July 2017, the Board remanded for further development.  Substantial compliance has been achieved.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 


FINDINGS OF FACT

1.  Throughout the appeal period, the right ankle disability has been manifested by marked limitation of motion during flare-ups.  

2.  Throughout the appeal period, the right ankle disability has been manifested by symptoms other than marked limitation of motion, including: stiffness, intermittent crepitus, mild effusion, tenderness, and mild instability and laxity.

3.  Throughout the appeal period, the right ankle disability has not been manifested by: reduction in muscle strength, atrophy, ankylosis, gait abnormalities, or functional impairment such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis.  
CONCLUSIONS OF LAW

1.  Throughout the appeal period, the criteria for a 20 percent evaluation for limitation of motion of the right ankle have been met.  See 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code (DC) 5271 (2017).  

2.  Throughout the appeal period, the criteria for a separate, 20 percent evaluation for manifestations other than limitation of motion of the right ankle have been met, to the extent not precluded by the amputation rule.  See 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.68, 4.71a, DCs 5271, 5284 (2017).    


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran generally contends that the manifestations of her right ankle disability are more severe than contemplated by the current evaluation of 10 percent under DC 5271.  For the reasons discussed below, the Board finds that: (1) the maximum schedular evaluation of 20 percent pursuant to DC 5271 is warranted; and (2) a separate, 20 percent evaluation pursuant to DC 5284 is warranted.

Under DC 5271, a 10 percent evaluation is warranted for "moderate" limitation of motion of an ankle.  See 38 C.F.R. § 4.71a, DC 5271.  A 20 percent evaluation is warranted for "marked" limitation of motion of an ankle.  Id.  The words "moderate" and "marked" are not defined in the rating schedule; rather, the Board must evaluate all the evidence.  See 38 C.F.R. § 4.6.  Evaluations greater than 20 percent are warranted under other diagnostic codes for the ankle when the ankle is ankylosed.  See 38 C.F.R. § 4.71a, DCs 5270 to 5274.  Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion.  See 38 C.F.R. § 4.71, Plate II.  In determining the degree of limitation of motion, the Board must consider lack of normal endurance, functional loss due to pain, pain on use and during flare-ups, weakened movement, excess fatigability, and incoordination.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).  As the Veteran's daily flare-ups, lasting hours at a time, are painful enough to render her unable to ambulate, the Board finds this limitation of motion to be "marked."  See February 2013 testimony; September 2017 VA examination report.  As such, the maximum schedular evaluation under DC 5271 is warranted.  However, since the ankle is not ankylosed, no higher rating is available under other diagnostic codes for the ankle.  See 38 C.F.R. § 4.71a, DCs 5270 to 5274.  

Additionally, instability of a joint (such as more joint movement than normal due to relaxation of ligaments) is a manifestation other than limitation of motion of a joint and must be considered as a separate factor of disability.  See 38 C.F.R. § 4.45(f); Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (permitting separate evaluations for separate problems arising from the same injury if they do not constitute the same disability or same manifestation under 38 C.F.R. § 4.14).  However, there is no DC which provides specific criteria for evaluating ankle disability due to the Veteran's manifestations other than limitation of motion (stiffness, intermittent crepitus, mild effusion, tenderness, and mild instability and laxity).  See 38 C.F.R. § 4.71a, DCs 5270 to 5274.  As such, the Board rates these additional manifestations by analogy to the criteria for other foot injuries.  See 38 C.F.R. § 4.71a, DC 5284 and Note.  

Under 5284, a 10 percent evaluation is warranted for "moderate" foot injuries, a 20 percent evaluation is warranted for "moderately severe" foot injuries, a 30 percent rating is warranted for "severe" foot injuries; and a 40 percent evaluation is warranted for "actual loss of use of the foot."  Id.  Again, the words "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather, the Board must evaluate all the evidence.  See 38 C.F.R. § 4.6.  The Board finds the Veteran's additional manifestations other than limitation of motion (stiffness, intermittent crepitus, mild effusion, tenderness, and mild instability and laxity) to be moderately severe, such that a 20 percent evaluation under DC 5284 is warranted, to the extent not precluded by the amputation rule.  See 38 C.F.R. § 4.68; February 2013 testimony; September 2017 VA examination report.  However, since these manifestations did not include reduction in muscle strength, atrophy, ankylosis, gait abnormalities, or functional impairment such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis, they do not rise above "moderately severe."  See 38 C.F.R. § 4.71a, DC 5284 and Note.  Lastly, the Board acknowledges that the Veteran is already rated under DC 5284 for her "right foot condition to include plantar spurring and limitation of motion," but finds that the separate DC 5284 due to her right ankle disability is not precluded because the manifestations attributable to the right ankle disability are etiologically distinct from those attributable to the right foot condition.  See 38 C.F.R. § 4.14.  

In light of the aforementioned, the Board finds that: (1) the maximum schedular evaluation of 20 percent pursuant to DC 5271 is warranted; and (2) a separate, 20 percent evaluation pursuant to DC 5284 is warranted.     


ORDER

An evaluation of 20 percent for limitation of motion of the right ankle is granted.

A separate evaluation of 20 percent for manifestations other than limitation of motion of the right ankle is granted, to the extent not precluded by the amputation rule.



____________________________________________
L.M. BARNARD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs