Citation Nr: 1802146 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-10 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for popliteal sensory neuropathy of the left ankle. 2. Entitlement to a separate compensable rating for limited motion of the left ankle. ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel INTRODUCTION The Veteran had active service in the United States Coast Guard (USCG) from June 2007 to November 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the case was subsequently transferred to the VA RO in Phoenix, Arizona. The Board notes that the Veteran's claim for an increased rating for a left ankle disability was partially granted in a September 2017 rating decision of the VA RO in Phoenix, Arizona. The September 2017 rating decision indicated that the scope of the Veteran's left ankle disability was entitlement to an initial compensable rating for a left ankle fracture with post-operative popliteal sensory neuropathy and slight arthrosis. Review of the record indicates that the Veteran has been diagnosed with left ankle popliteal sensory neuropathy and left ankle pain. Accordingly, the Board has recharacterized the Veteran's claim as two individual claims: entitlement to an initial rating in excess of 10 percent for popliteal sensory neuropathy of the left ankle and entitlement to a separate compensable rating for limited motion of the left ankle to better reflect the scope of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). See also Doucette v. Shulkin, 28 Vet. App. 366 (2017). FINDINGS OF FACT 1. The Veteran's left ankle popliteal sensory neuropathy has not been manifested by incomplete paralysis of the popliteal nerve that is moderate in severity. 2. For the entire period on appeal, the Veteran's left ankle disability has been manifested by X-ray evidence of arthritis and painful motion, but has not been productive of limitation of motion that is marked in severity. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left ankle popliteal sensory neuropathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8521 (2017). 2. The criteria for separate rating of 10 percent, but not higher, for limited motion of the left ankle have been met for the entire period on appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has asserted that he should have a higher rating for his left ankle disability as his symptoms are worse than those contemplated by the currently assigned rating. At a March 2016 VA examination, the Veteran reported that he experienced left ankle pain and that his ankle also hurt in "the skin." He reported that he treated his left ankle pain with NSAIDs and that he was slow to perform activities of daily living because he was unable to run, his gait was off, and he experienced shooting pains from the ankle up into his knee. The Veteran reported that he had been unable to go into law enforcement as was his desire as a result of his left ankle disability. He reported that he currently worked as a training manager at a call center and that position was tolerable as he was able to sit for part of the day. The Veteran denied flare-ups of his left ankle pain. Upon physical examination, the Veteran's left ankle range of motion measurements were as follows: dorsiflexion to 20 degrees and plantar flexion to 45 degrees. There was pain on range of motion and on weight-bearing. There was tenderness to palpation of the post-tibial nerve area of the popliteal nerve behind the medial malleolus with Tinnel's which radiated into the dorsum of the foot, plantar foot, and up the leg toward the knee with a hard touch or hard heel strike. There was no additional limitation of motion following repetition. The examiner noted that pain, fatigue, and lack of endurance caused additional functional limitation, but that the additional impairment could not be measured in degrees. Right ankle range of motion measurements were conducted for comparison purposes. Muscle strength testing was normal, there was no left ankle instability, and there was no left ankle ankylosis. It was noted that the Veteran did not require assistive devices for ambulation. X-rays of the left ankle revealed slight narrowing of the mortice and the anterior talar spur, which qualified as slight traumatic arthritis of the left ankle. The examiner diagnosed left ankle fracture, status post-surgical repair with sensory neuropathy and slight arthritis. The examiner found that the Veteran's ankle disabilities mildly limited his ability to perform bodily functions and activities of daily living, and noted that the Veteran able to perform sedentary work and at least moderate physical work. The Board finds that an initial rating in excess of 10 percent for his left-ankle popliteal sensory neuropathy is not warranted. In this regard, the Board notes that the Veteran's sensory symptoms are no worse than mild. While the Veteran has been noted to experience shooting pain into his leg from his ankle, there was no evidence that the Veteran experienced difficulty walking or wearing shoes and socks, as would be the case with a more serious impairment. Further, the Veteran did not have any deficiencies in muscle strength testing and there was no evidence of foot drop. Therefore, the Board finds that an initial rating in excess of 10 percent for left-ankle popliteal sensory neuropathy is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2017). The Board finds that the Veteran is entitled to a separate 10 percent rating for painful motion of his left ankle for the entire period on appeal. In this regard, the Board noted that at his March 2016 VA examination, the Veteran was noted to have arthritis in his left ankle. Further, the Veteran has reported painful motion of his left ankle. While the Veteran's left ankle range of motion was full, it was noted that the Veteran would experience additional functional impairment as a result of pain, fatigue, and lack of endurance. Further, there was pain with weight bearing and evidence of localized tenderness or pain to palpation. Therefore, the Board finds that the Veteran's left ankle symptoms warrant a separate 10 percent rating for painful motion for the entire period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2017). Consideration has been given to assignment of a separate rating in excess of 10 percent for left ankle limitation of motion. However, there is no indication from the record that the Veteran demonstrates marked limitation of left ankle motion. At his March 2016 VA examination, the Veteran's left ankle had full range of motion. Further there was no indication from the record that the Veteran experienced more than mild impairment in his ability to perform activities of daily living. The examiner also noted that the Veteran could perform sedentary work and was able to perform medium physical work. Therefore, the Board finds that entitlement to a separate rating in excess of 10 percent for painful motion of the left ankle is not warranted. 38 C.F.R § 4.73, Diagnostic Code 5271 (2017). The Board notes that the additional limitation the Veteran experiences due to pain, weakness, and fatigability on repetition was accounted for by the VA examiner when determining the Veteran's range of motion. 38 C.F.R. § 4.40, 4.45 (2017). There is no other evidence showing that the Veteran has more limitation of motion than that found at the VA examination. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning schedular ratings in excess of 10 percent for functional impairment or limited motion of the left ankle. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted higher schedular ratings than those assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER Entitlement to an initial rating in excess of 10 percent for popliteal sensory neuropathy of the left ankle is denied. Entitlement to a separate rating of 10 percent for painful motion of the left ankle for the entire period on appeal is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs