Citation Nr: 18140182 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-37 113 DATE: October 2, 2018 ORDER Prior to February 13, 2014, a rating in excess of 10 percent for the service-connected right ankle degenerative joint disease (DJD) with instability is denied; a rating of 20 percent, but no higher, is granted from February 13, 2014. FINDINGS OF FACT Prior to February 13, 2014, the Veteran’s right ankle disability was manifested by no more than moderate limitation of motion; from February 13, 2014, the right ankle is manifested by marked limitation of motion. CONCLUSIONS OF LAW 1. Prior to February 13, 2014, the criteria for a rating in excess of 10 percent for right ankle DJD with instability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.71a, DC 5271. 2. From February 13, 2014, the criteria for a rating of 20 percent for right ankle DJD with instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.71a, DC 5271. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1971 to February 1977. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initiated an appeal as to his left shoulder as well; however, that issue is not currently before the Board. The Veteran was seeking a 20 percent rating for his right shoulder and a 20 percent rating was granted in a May 2017 rating decision and supplemental statement of the case. In response, the Veteran indicated he was appealing the right ankle decision only and thanked VA for the findings concerning his left shoulder. See Correspondence from the Veteran dated May 17, 2017. Further, the Veteran limited both his VA Form 9, substantive appeals, to the right ankle only. Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when the Veteran was actually experiencing symptoms is what is relevant for assigning rating effective dates, not when evidence was created. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disability prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. The Board has reviewed all of the evidence in the Veteran’s record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board’s analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000). The Veteran contends that his right ankle DJD with instability warrants a rating of at least 20 percent based on his pain and limitation of motion. The Veteran’s right ankle disability is rated 10 percent disabling effective from March 1, 1977 under diagnostic code (DC) 5271, which covers limitation of motion of the ankle. The primary symptom manifestations considered by DC 5271 include pain on use and limitation of motion of the ankle. Under rating criteria pertaining to limitation of motion of the ankle, a 10 percent rating is warranted where evidence shows a moderate limitation of motion, and a 20 percent rating is warranted where evidence shows a marked limitation of motion. Twenty percent is the highest schedular rating under DC 5271. The terms “moderate” and “marked” as used under DC 5271 are not defined in the Schedule. Rather than applying a mechanical formula to determine when symptomatology is “moderate” or “marked,” the Board must evaluate all the evidence to ensure an “equitable and just” decision. 38 C.F.R. § 4.6. To that extent, the Board notes that the normal ROM for the ankle is as follows: dorsiflexion to 20 degrees and plantar flexion to 45 degrees. The Veteran has submitted private treatment records for his right ankle disability showing a progressive worsening of its condition. Records dated from 2013 show that the Veteran was experiencing worsening pain and swelling in his ankle, but that he was continuing to compete in triathlons through successful treatment such as steroid injections. Indeed, in February 2013 the Veteran’s doctor indicated that the Veteran did not have any limitation of motion, and none was explicitly noted to exist in the Veteran’s right ankle until September 2013. An October 2013 VA examination found that the Veteran had full ROM for plantar flexion and dorsiflexion, including where pain begins and after repetitive use testing. However, in February 2014 private medical records show that the Veteran’s ROM in the service-connected right ankle began to diminish significantly. On February 13, 2014, records show the Veteran’s right ankle “range of motion is from 0 [degrees] to about 20 [degrees] of plantar flexion, roughly 20 to 25% of his opposite side … there is significant limitation of motion and advanced symptoms of pain uncontrolled by normal measures.” In August 2015, the same doctor noted that the Veteran’s condition had worsened, and that with additional swelling and tenderness during that day’s examination, the Veteran had “5 [degrees] of ankle dorsiflexion and 5 [degrees] of plantar flexion for a total arc of motion of 10 [degrees]. This is a severe or significant limitation and deviation from normal.” The Board acknowledges that the Veteran submitted lay statements regarding worsening pain. In particular, in October 2013, the Veteran submitted a statement indicating that his right ankle had gotten much worse in the prior 10 months, that he had a limp, particularly when walking barefoot, and that it impacted his job as a swim coach, where he was required to walk barefoot. In May 2017, the Veteran reported that his condition had continued to worsen and that “steroid injections no longer provide pain relief nor do drugs like Percocet and Hydrocodone.” Based on the medical and lay evidence of record, the Board finds that the Veteran was appropriately compensated with a 10 percent disability rating under DC 5271 prior to February 13, 2014. For much of that time, both the private records submitted by the Veteran and the VA examinations are in agreement that the Veteran’s primary symptom was pain on use, and that ROM was normal for both plantar flexion (45 degrees) and dorsiflexion (20 degrees). The Board does note one VA examination from August 2012 that recorded objective evidence of painful motion beginning at 30 degrees for plantar flexion and at 10 degrees for dorsiflexion. In the context of the remaining evidence of record, the Board finds that the Veteran experienced moderate limitation of motion prior to February 13, 2014. The evidence of record establishes that the Veteran began experiencing marked limitation of motion of the right ankle beginning February 13, 2014. Not only did the Veteran’s physician state that the Veteran experienced “roughly 20 to 25%” of the ROM in his service-connected right ankle compared to his uninjured left ankle, but later evidence shows objective findings of worsened ROM, and the Veteran has submitted credible lay statements that his symptoms had been consistently worsening over time. Accordingly, the Board finds that the Veteran meets the criteria for a 20 percent rating for his service-connected right ankle DJD with instability, effective February 13, 2014. The Board notes that there are, of course, other DCs that could be considered for the Veteran’s ankle disability. For instance, his medical records show that he has been diagnosed with osteoarthritis. However, DC 5003 does not permit application based on an osteoarthritis diagnosis if the appropriate limitation of motion DC allows for a compensable rating, as it does here. Likewise, the other DCs pertinent to the ankle are inapplicable for the Veteran. The only DC that would permit the Veteran to achieve a higher rating than 20 percent, DC 5270, only applies where a veteran has a diagnosis of ankylosis. However, none of the medical reports of record show that the Veteran has ever had an ankylosis diagnosis associated with his right ankle. Accordingly, although his ROM evaluations would appear to enable him to achieve a higher rating under DC 5270 than under DC 5271, DC 5270 cannot be applied in this case. Further, even if any of the other DCs could be additionally applicable, the Veteran cannot be compensated under two diagnostic codes for the same symptomatology. See 38 C.F.R. § 4.14; Brady v. Brown, 4 Vet. App. 203, 206 (1993). Finally, the Board also acknowledges the Veteran’s arguments regarding 38 C.F.R. sections 4.40, 4.45, and 4.59. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Board has considered the Veteran’s functional loss due to pain in making its determination. However, a higher rating given these considerations and his symptoms is not warranted as the record reflects that the Veteran was able to continue to compete in triathlons; in February 2013 the Veteran’s doctor indicated that the Veteran did not have any limitation of motion; and an October 2013 VA examination found that the Veteran had full ROM for plantar flexion and dorsiflexion, including where pain begins and after repetitive use testing. As noted above, 20 percent is the maximum schedular rating under this Diagnostic Code. As the veteran is in receipt of the maximum disability rating available under the relevant Diagnostic Code for limitation of motion, from February 13, 2014, DuLuca consideration of functional loss due to pain is not required for this period. Johnson v. Brown, 10 Vet. App. 80 (1997). Further, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Johnson v. Brown, 9 Vet. App. 7 (1997). Accordingly, because the Veteran is being granted the maximum compensable rating for his symptoms in this decision effective February 13, 2014, he cannot be assigned any additional ratings after that date under sections 4.40, 4.45, or 4.59 for any additional functional loss associated with pain on use or due to flare-ups. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel