Citation Nr: 1804359 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 08-08 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Evaluation to a disability rating in excess of 10 percent for left ankle disability from June 10, 2009. 2. Evaluation to a disability rating in excess of 10 percent for right ankle disability from June 10, 2009. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1976 to February 1980 and from June 1980 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In February 2012, the remanded the current issues for further evidentiary development. The limited issue before the Board is evaluation to a rating for each ankle disability in excess of 10 percent from June 10, 2009. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). FINDING OF FACT Since June 10, 2009, the Veteran's left and right ankle disabilities have been manifested by moderate pain, driving and climbing stairs, and limitations of walking more than three miles; they have not been manifested by marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the left ankle disability have not been met since June 10, 2009. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271 (2017). 2. The criteria for a rating in excess of 10 percent for the right ankle disability have not been met since June 10, 2009. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2016); see also 38 C.F.R. §§ 4.45, 4.59 (2016). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's bilateral ankle disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2017). Diagnostic Code 5010 applies to arthritis due to trauma and Diagnostic Code 5271 applies to limited motion of the ankle. Diagnostic Code 5010 indicates that arthritis due to trauma should be rated as degenerative arthritis. Pursuant to Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved, which in this case are Diagnostic Codes 5270-5274. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5271 is assigned to evaluate limited motion of the ankle. A 10 percent rating is assigned for "moderate" limited motion; a 20 percent rating is assigned for "marked" limited motion. The words "moderate" and "marked" are not defined in the rating schedule and, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. VA treatment records documented the Veteran's complaints of pain in his ankles, specifically on November 2009, December 2009 and February 2010. In June 2009, the Veteran reported "issues" with his ankles but stated that he was able to walk one to three miles. Further, he assessed his ankle pain as "four to five" on a scale from one to ten, ten being the value representing the most painful. Following a February 2012 Board remand, the Veteran was afforded a VA examination in March 2017. The Veteran reported difficulty driving and climbing stairs due to his bilateral ankle disabilities. Following active range of motion tests, the Veteran displayed the following results: 10 degrees dorsiflexion of the right ankle, 35 degrees plantar flexion of the right ankle, 15 degrees dorsiflexion of the left ankle, and 40 degrees plantar flexion of the left ankle. In addition, the examiner performed passive range of motion tests for both ankles. The Veteran displayed the following results following passive range of motion tests: 15 degrees dorsiflexion of the right ankle, 40 degrees plantar flexion of the right ankle, 15 degrees dorsiflexion of the left ankle, and 40 degrees plantar flexion of the left ankle. The examiner noted objective evidence of pain when the right ankle is used in weight bearing as well as non-weight bearing. In addition, the examiner noted no objective evidence of pain in weight bearing of the left ankle, but he noted evidence of pain when the left ankle is used in non-weight bearing. The examiner observed signs of mild localized tenderness of the right ankle. The examiner did not find any evidence of anklyosis in either the left or the right ankle. The examiner stated that the "Veteran has mild bilateral osteoarthritis in his ankles. Certain occupational demands such as long periods of standing/walking or driving will be impacted to a mild degree." Following careful review of the evidence, ratings higher than 10 percent are not warranted in this case because the evidence of record does not reflect that the symptoms more nearly approximated marked limitation of motion. According to March 2017 range of motion tests, the Veteran displayed moderate limitation of motion. The March 2017 VA examiner assessed the Veteran's limitation of motion for both ankles as "mild." While the examiner observed objective evidence of pain in both ankles with non-weight bearing, the Veteran's complaints throughout of the period under review indicated mild or moderate pain in both ankles. Despite the Veteran's subjective complaints of bilateral ankle pain, the record lacks any objective findings of marked limitation of motion from June 10, 2009. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Accordingly, ratings higher than 10 percent are not warranted for the bilateral ankle disabilities from June 10, 2009. The benefit of the doubt rule is not applicable in this instance. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. ORDER From June 10, 2009, an evaluation in excess of 10 percent for the left ankle disability is denied. From June 10, 2009, an evaluation in excess of 10 percent for the right ankle disability is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs