Citation Nr: 1804511 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-16 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 20 percent for residuals of a left ankle fracture. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1974 to May 1985. This appeal is before the Board of Veterans' Appeals (Board) from a January 2012 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran testified during a Board hearing in St. Petersburg, Florida, before the undersigned Veterans Law Judge. A transcript is included in the claims file. FINDING OF FACT The Veteran's residuals of a left ankle fracture manifest as malunion of the tibia and fibular with marked ankle disability, but not nonunion of the tibia and fibula, ankylosis, malunion of the os calcis or astralagus, astragalectomy, or the functional equivalent thereof. CONCLUSION OF LAW The criteria for an evaluation of 30 percent, but not in excess thereof, for residuals of a left ankle fracture have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims an increase to his rating for residuals of a left ankle fracture. Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). There is thus no prejudice to the Veteran in deciding this appeal. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran's left ankle disability is rated at 20 percent as impairment of the tibia and fibula under 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under this code, malunion of the tibia and fibula is rated at 10 percent with slight knee or ankle disability, 20 percent with moderate knee or ankle disability, and 30 percent with marked knee or ankle disability. Nonunion of the tibia and fibula, with loose motion and requiring a brace, is rated at 40 percent. Alternative and additional Diagnostic Codes for the ankle are available under 38 C.F.R. § 4.71a, as follows: Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. As the Veteran is in receipt of a 20 percent rating based on limitation of motion, higher ratings based on these criteria are not available for the Veteran. Under 38 C.F.R. § 4.71a, Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees is rated at 20 percent; ankylosis in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees is rated at 30 percent; and ankylosis in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity is rated at 40 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5271, limited motion of the ankle is rated at 10 percent for moderate limited motion and 20 percent for marked limited motion. While the schedule of ratings does not provide any information as to what manifestations constitute "moderate" or "marked" limitation of ankle motion, guidance can be found in VBA's M21-1 Adjudication Procedures Manual. Specifically, the manual states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. Under 38 C.F.R. § 4.71a, Diagnostic Code 5272, ankylosis of the subastragalar or tarsal joint is rated at 10 percent for ankylosis in good weight-bearing position and at 20 percent for ankylosis in poor weight-bearing position. Under 38 C.F.R. § 4.71a, Diagnostic Code 5273, malunion of the os calcis or astralagus is rated at 10 percent for moderate deformity and 20 percent for marked deformity. Under 38 C.F.R. § 4.71a, Diagnostic Code 5274, astragalectomy is rated at 20 percent. Private treatment records reflect that in November 2010 the Veteran reported restrictive range of motion and pain on waking. Specifically, he stated that it takes him about 15-20 minutes to become mobile each morning. Ankle range of motion was restricted with knee extended versus flexed. Subtalar joint range of motion was markedly restricted. X-rays showed severe comminution of the fibula, which had healed but with bony fragments present. He received an injection. A December 2010 ultrasound was consistent with traumatic arthritis. He reported 70 percent improvement with the injection. In January 2011 he requested an ankle brace, which he received in March 2011. VA treatment records reflect that in May 2012 the Veteran reported that his disability was bothering him. He reported muscle cramps. He reported that he was still able to jog and work out. He was diagnosed with traumatic arthritis and prescribed medication. The Veteran underwent a VA examination in February 2014. He reported persistent pain and stiffness in the left ankle. He reported regular use of an ankle brace and intermittent narcotic pain medication. He denied flare-ups. Plantar flexion was limited to 35 degrees without pain. Dorsiflexion was limited to 5 degrees without pain. Repetitive testing led to loss of functional impairment through less movement but did not further reduce the range of motion. There was objective evidence of localized tenderness and pain on palpation. Muscle strength was normal. Stability tests were normal. There was no ankylosis. There was no evidence or history of shin splints, stress fractures, tendonitis, tendon rupture, malunion of the os calcis or astralagus, or astragalectomy. X-rays showed evidence of arthritis along with irregularity and deformity of the distal fibula with densities possibly related to gunshot residues. He was diagnosed with fracture of the left ankle and tibia, status post open reduction and internal fixation with scarring. Private treatment records reflect that in April 2014 the Veteran reported continual pain in the left ankle. The subtalar joint was markedly painful on pronation and supination as well as the ankle in dorsiflexion. His physician felt that instability was still present. At his June 2017 hearing, the Veteran reported that he could no longer jog, though he still went to the gym to stay in shape. His representative contended that he should also receive a separate rating for a muscle injury under Diagnostic Code 5310 because the injury was a through-and-through gunshot wound. The representative also raised the possibility of a separate rating based on a finding of arthritis. As an initial matter, the Board finds that a separate rating for a muscle injury is not warranted. The February 2014 VA examination found no muscle damage, and indeed his service treatment records reflect that there was no muscular or neurovascular damage from the original June 1981 gunshot wound. The regulation cited by the Veteran's representative states that "a through-and-through injury wound with muscle damage should be evaluated as no less than a moderate injury for each group of muscles damaged." 38 C.F.R. § 4.56(b) (emphasis added). There is nothing in the regulation which states that a gunshot wound results in permanent muscle damage per se. Rather, the Veteran's reported symptoms here are all consistent with his current musculoskeletal rating, as opposed to an additional rating for a muscle injury, particularly when, as here, objective muscle strength testing is normal. The Board finds that a 30 percent evaluation is warranted for the Veteran's left ankle disability. His current 20 percent evaluation is warranted for malunion of the tibia and fibula with moderate ankle disability. A 30 percent evaluation is warranted for malunion with marked ankle disability. The evidence weighs in favor of malunion with a marked ankle disability. X-ray evidence shows a fibular deformity warranting evaluation under the current code. His private physician described his limited motion as marked, and the 5 degrees of dorsiflexion measured at his February 2014 VA examination meets VA's guidance for marked limitation of motion. While marked limitation of motion only warrants a 20 percent rating under Diagnostic Code 5271, a marked ankle disability combined with a fibular deformity warrants a 30 percent evaluation under Diagnostic Code 5262. For these reasons, the Board finds that an evaluation of 30 percent is warranted. The Board further finds that higher or additional ratings are not warranted. Higher or separate ratings are available for nonunion of the tibia and fibula, ankylosis, malunion of the os calcis or astralagus, astragalectomy, or the functional equivalent thereof. The evidence weighs against such manifestations. There is no evidence indicating nonunion of the tibia and fibula, ankylosis, malunion of the os calcis or astralagus, or astragalectomy. As to functional equivalence, the Veteran has denied flare-ups, though he uses an ankle brace. The pain and limited mobility that he reports, however, are the symptoms on which a 30 percent rating is based, and no higher rating is available for mere increase in the same symptoms. The Board finds that his regular use of a brace and other reports of pain are not the functional equivalent of higher or additional ratings. See DeLuca, 8 Vet. App. at 204-07. Furthermore, while the Veteran's representative argued for an additional evaluation due to findings of arthritis, because his current evaluation is based on limitation of motion, an additional rating for arthritis or for limited motion under Diagnostic Code 5271 would constitute unlawful pyramiding. 38 C.F.R. § 4.14. For these reasons, the Board finds that higher or separate ratings are not warranted for the Veteran's ankle disability. ORDER An evaluation of 30 percent, but not in excess thereof, for residuals of a left ankle fracture is granted, subject to the laws and regulations governing the payment of VA benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs