Citation Nr: 1800412 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-06 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a rating in excess of 10 percent for non-displaced healed fracture of the right ankle. ATTORNEY FOR THE BOARD T. Fales, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to August 1971. He served honorably in the United States Army. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. This matter was previously before the Board in December 2015 when the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In June 2016, this matter was remanded for further development. FINDING OF FACT Prior to December 19, 2016, the Veteran's right ankle was manifested by no more than moderate limitation of motion; from December 19, 2016, the right ankle has marked limitation of motion. CONCLUSION OF LAW 1. Prior to December 19, 2016, a rating in excess of 10 percent for non-displaced healed fracture of the right ankle is denied. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5271 (2017). 2. From December 19, 2016, a rating of 20 percent, but no higher, for non-displaced healed fracture of the right ankle is granted. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Legal Criteria Where a veteran is seeking an increased rating for a disability one year or more after the grant of entitlement to service connection, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The present level of disability will be judged from the time period one year before the increased rating claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). At the same time, each disability will be viewed in relation to its history. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings, or separate ratings based on evidence showing that a veteran's disability was different at distinct times, will also be considered. See Hart, 21 Vet. App. at 510. VA assigns a percentage rating for a disability by comparing a veteran's disability against criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.1. The Schedule is based on the average reduction in earning capacity in civilian occupations resulting from diseases and injuries associated with service in the armed forces. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If a veteran's symptoms implicate two different ratings under a single Diagnostic Code (DC) in the Schedule, then VA will assign the higher rating provided that the symptoms more closely align with the criteria for the higher rating. See 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA's determination about which rating to assign is also informed by a broad interpretation of the law consistent with the facts of each case and, if there is a reasonable doubt as to the degree of a veteran's disability, then the doubt will be resolved in the veteran's favor. See id. § 4.3. After VA assigns a rating, that rating may require re-evaluation in the future in keeping with changes to the veteran's condition, the law, and medical knowledge. See id. § 4.1. Pyramiding, or the process of rating the same disability under multiple DCs, is to be avoided. See id. § 4.14. However, VA may assign multiple ratings for separate and distinct symptoms so long as none of the symptoms overlap. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Further, although using symptoms from a nonservice connected disability for the purposes of rating a disability that is service connected is prohibited, if it is not possible to distinguish between the respective symptoms because they are so intertwined, then the symptoms will be attributed to the service-connected disability. See 38 C.F.R. §§ 3.102, 4.14; Mittleider v. West, 11 Vet. App. 181, 182 (1998). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Ankle disabilities are rated pursuant to DCs 5270 through 5274. See id. § 4.71a. Degenerative arthritis is rated under DC 5003 and traumatic arthritis is rated under DC 5010. Id. All applicable rating criteria are to be considered, in addition to any DCs a veteran is already rated under. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Analysis Here, the Veteran was service connected for his right ankle condition in September 1971. At that time, he was assigned a noncompensable rating under DC 5271. In October 2010, he filed the present claim for an increased rating and the RO granted a 10 percent rating under DC 5271, effective October 2010. The 10 percent rating was based on a VA examination from December 2010. In the December 2010 VA examination, the Veteran's range of motion was tested. Normal range of motion for the ankle is 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71, Plate II. By contrast, the Veteran's dorsiflexion was the full 20 degrees but his plantar flexion was limited to 35 degrees. In addition, the examiner diagnosed him with "[m]oderate posttraumatic arthritis, right ankle" established by X-ray and noted that he was experiencing a "2/10 pain" level in his ankle, although no pain was observed during range of motion testing. On this basis, the RO granted the 10 percent rating under DC 5271 for moderate limitation of motion. A 10 percent rating under DC 5271 requires "moderate" limitation of motion and a 20 percent rating requires "marked" limitation of motion. 38 C.F.R. § 4.71a. Twenty percent is the highest rating available under DC 5271. See id. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." Id. § 4.6. It should also be noted that use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. Id. §§ 4.2, 4.6. The Board finds that the 10 percent rating was appropriate for the Veteran's condition at that time because the evidence shows that his condition warranted a compensable rating due to his plantar flexion being limited by 10 degrees, documented arthritis, and some pain. On the other hand, the Board also finds that a higher rating was not warranted at that time because he still had full dorsiflexion, 35 out of 45 degrees of plantar flexion, and the 2010 VA examiner did not find that flare-ups reduced his range of motion any further. For the purposes of this case, the Board finds that a loss of 10 degrees of plantar flexion constitutes moderate limitation of motion. Regarding the 2010 examination, the Board finds that attempting to gain more credible evidence about range of motion testing and flare-ups retroactively would not be "practicable" due to the nature of the potential evidence and the passage of seven years. Correia v. McDonald, 28 Vet. App. 158, 160 (2016) (Holding that "the final sentence of [38 C.F.R.] § 4.59 requires that the listed range of motion testing be conducted to the extent practicable in all cases involving joint disabilities."). See also Sharp v. Shulkin, 29 Vet. App. 26, 33-34 (2017) (Acknowledging "practical" limitations for VA in scheduling certain flare-up examinations.). After the RO granted the 10 percent rating under DC 5271, the Veteran timely appealed to the Board. During the videoconference Board hearing in December 2015, he testified that his right ankle condition had worsened since the December 2010 examination. As a result, this matter was remanded for an updated examination. The Veteran underwent his updated VA examination in December 2016. His range of motion was tested again, but this time his dorsiflexion was limited to 10 degrees and his plantar flexion was limited to 30 degrees. In other words, his range of motion declined across-the-board between the 2010 and 2016 examinations and in the case of dorsiflexion, his range of motion was reduced by half and to just 50 percent of normal. In addition, and unlike in 2010, the examiner opined that functional ability of the ankle was further reduced during flare-ups due to increased pain, although this reduction could not be quantified because the Veteran was unable to describe his functional loss during flare-ups in terms of range of motion. See Sharp, 29 Vet. App. at 32 (Stating that flare-ups "must" be factored into an examiner's assessment but range of motion loss during flare-ups "should, if feasible" be portrayed in terms of degrees.). The examiner also tested the Veteran's ankle for pain in weightbearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). In light of this new evidence, the Board concludes that an increased rating to 20 percent is warranted from the date of the December 19, 2016 examination under DC 5271. The Board reiterates that 20 percent is the maximum amount allowed under the law for this DC and thus any further increase under this DC is not possible. The increase is warranted because the Board finds that the Veteran's condition has sufficiently worsened since 2010 such that limitation of motion is now marked. It is marked because the 2016 examiner found universal decline in range of motion since 2010, to the point where the Veteran now has only half of the normal range of motion for dorsiflexion and he has additional loss of function due to increased pain during flare-ups. See 38 C.F.R. §§ 4.3, 4.7; DeLuca, 8 Vet. App. at 206. For the purposes of this case, the Board finds that a loss of 10 degrees of dorsiflexion and 15 degrees of plantar flexion, plus additional loss during flare-ups, is marked limitation of motion. As to the other applicable ratings criteria, although the Veteran has a diagnosis of traumatic arthritis, a separate rating is not warranted under DC 5010 because traumatic arthritis is rated under DC 5003 for degenerative arthritis. Degenerative arthritis is first rated on the basis of limitation of motion under the appropriate DC for the specific joint involved. For the ankle, that is DC 5271. As discussed above, the Veteran's limitation of motion is already compensable under DC 5271 and this precludes a 10 percent rating under DC 5003 for arthritis accompanied by noncompensable limitation of motion and pain. The only other way to be rated under DC 5003 is if two or more joints are involved, which is not the case here because the Veteran is service connected for his right ankle alone. Accordingly, a rating under DC 5003 is not warranted. Finally, the Veteran has not been found to have ankylosis, malunion of the os calcis or astragalus, and he has not had an astragalectomy. Accordingly, a rating under DCs 5270, 5272, 5273, and 5274 is not warranted. In reaching the above conclusions, the Board has not overlooked the Veteran's statements regarding the severity of his service connected disabilities and that a higher rating is warranted. See, e.g., February 2014 Substantive Appeal. The Board agrees that a higher rating is warranted and has assigned the maximum rating under the pertinent DC herein. To the extent that he is arguing that his ankle ratings should be even higher, the Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing symptoms. See Washington v. Nicholson, 19 Vet. App. 362 (2005). However, although the Board may consider the Veteran's subjective statements regarding the severity of his disabilities, and has in this case, the Board notes that with respect to the Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have, that these types of findings are not readily observable by a layperson, and that objective medical findings and opinions provided by VA examiners are afforded the greater probative weight. The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Here, the Board has determined that the findings and opinions provided by the VA examiner of record should be afforded the greater probative weight. Id. In sum, the Board concludes that a higher rating of 20 percent, but no higher, is warranted under DC 5271 due to marked limitation of motion of the Veteran's right ankle. ORDER Prior to December 19, 2016, a rating in excess of 10 percent for non-displaced healed fracture of the right ankle is denied; a 20 percent rating, but no higher, is granted from December 19, 2016, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs