Citation Nr: 18141754 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 13-24 520 DATE: October 11, 2018 ORDER Entitlement to a rating in excess of 10 percent for residuals of right ankle fracture prior to February 15, 2017, and in excess of 20 percent thereafter is granted. FINDINGS OF FACT 1. Prior to February 15, 2017, the Veteran’s right ankle disability manifested with moderate limited motion and no objective evidence of painful motion. 2. From February 15, 2017, Veteran’s right ankle disability manifested with marked limited motion, severe localized tenderness, and flare-ups. CONCLUSIONS OF LAW 1. Prior to February 15, 2017, the criteria are not met for a rating in excess of 10 percent for a right ankle disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5010-5271. 2. From February 15, 2017, the criteria for a 20 percent, but no higher, are met for a right ankle disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5010-5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to October 1973. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in August 2016. A transcript of the hearing has been associated with the record. The Board remanded this case in January 2017. The Veteran’s right ankle disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5010-5271. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned specific diagnostic codes. 38 U.S.C.§1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. DC 5010 provides that traumatic arthritis, when substantiated by X-ray findings, is to be evaluated under DC 5003 as degenerative or osteoarthritis, which in turn indicates the disability will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, DCs 5003, 5010. Diagnostic Code 5271 provides for a 10 percent rating for limitation of ankle motion when moderate, and (a maximum) 20 percent rating when marked. 38 C.F.R. § 4.71a. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II. Other codes providing for ratings in excess of 10 percent for ankle disability - 5270, 5272, 5273, 5274 - require pathology not shown here (i.e., ankylosis, malunion, astragalectomy). 38 C.F.R. § 4.71a. On September 2011 examination, the Veteran’s range of motion measurements showed plantar flexion to 35 degrees and dorsiflexion to 10 degrees. There was no objective evidence of painful motion. He reported clicking, catching, and locking at times. The Veteran also stated there was occasional swelling. Functional loss resulted in less movement than normal and there was pain on palpation. On February 2017 examination, the Veteran’s range of motion measurements showed plantar flexion to 20 degrees and dorsiflexion to 10 degrees. His reduced range of motion compromised his ability to walk and drive. The Veteran reported that during flare-ups the pain would get so bad that he could hardly walk. He also stated that he could not walk, stand, or drive for more than 20 to 30 minutes. The examiner found the Veteran’s pain did not result in functional loss. There was severe localized tenderness. The Veteran could perform repetitive use testing without additional functional loss. On review of the record, the Board finds that the disability picture presented by the Veteran’s right ankle disability does not warrant a rating higher than 10 percent prior to February 15, 2017. Specifically, on September 2011 VA examination, the Veteran had a reduced range of motion in the right ankle with pain. Treatment records showed complaints of chronic pain. Prior to February 15, 2017, the preponderance of the evidence does not show marked limitation of motion. Nor does the evidence show that a higher rating is assignable under a different diagnostic code. In conclusion, the Board finds that the preponderance of the evidence weighs against a marked impairment prior to February 15, 2017. From February 15, 2017, the Board finds the Veteran’s right ankle disability does not warrant a rating higher than 20 percent. Specifically, on the February 2017 VA examination, he had a decreased range of motion with severe localized tenderness noted. In addition, the Veteran reported that he could not walk, stand, or drive for more than 20 to 30 minutes. Considering the Veteran’s decreased range of motion and functional loss, from February 15, 2017, the Board finds the Veteran’s right ankle disability resulted in a marked impairment. The Board notes the Veteran’s representative contends the February 2017 examination was inadequate because the examiner was unable to make a determination about functional loss after repetitive use over time and functional loss during flare-ups. Regarding repetitive use over time, the examiner explained that a more conclusive answer could not be provided because the examination did not take place immediately after repetitive use over time. Regarding flare-ups, the examiner noted the examination did not take place while the Veteran had a flare-up, which was the reasoning a more definitive statement about function loss could not be provided without resorting to mere speculation. The Board finds the examiner’s responses are sufficient for adjudication, and furthermore, grants the highest rating based on reduced range of motion from the date of this examination; rendering any error non-prejudicial as the benefit sought based on reduced range of motion is granted as of the date of this examination. Accordingly, the Board finds that entitlement to a disability rating in excess of 10 percent for a right ankle disability prior to February 15, 2017, and in excess of 20 percent thereafter is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   During the appeal, a temporary total was granted under 38 C.F.R. § 4.30 for the right ankle disability. The record does not reflect a basis nor do the contentions raise the issue of an extension of this convalescent rating. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Kass, Associate Counsel