Citation Nr: 18141765 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-25 149 DATE: October 11, 2018 ORDER From December 1, 2014, a rating of 40 percent, but not higher, for residuals of right ankle fracture with total arthroplasty is granted.   FINDING OF FACT From December 1, 2014, the Veteran’s right ankle disability, including total arthroplasty procedure with implant, was productive of chronic residuals with severe pain and limitation of motion. CONCLUSION OF LAW From December 1, 2014, the criteria for a 40 percent rating, but not higher, for chronic residuals following right ankle replacement with prosthesis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5056. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1977 to October 2001. The case is on appeal from a February 2015 rating decision. The Board notes the April 2016 statement of the case (SOC) indicated the two issues on appeal were the right ankle increased rating claim and the claim for a compensable rating for right ankle scars. However, in the May 2016 substantive appeal, the Veteran limited the appeal to the right ankle increased rating claim. Thus, the sole issue before the Board is the right ankle claim. A rating in excess of 20 percent for residuals of right ankle fracture with total arthroplasty. On October 15, 2013, the Veteran underwent a total right ankle arthroplasty with implant. In the February 2015 rating decision, the Regional Office (RO) granted a 100 percent rating effective October 15, 2013 based on convalescence due to the procedure, with a 20 percent rating effective December 1, 2013. Thereafter, an April 2016 rating decision assigned the 100 percent rating to November 30, 2014, and reduced the Veteran’s right ankle rating to 20 percent, effective December 1, 2014, the beginning of the appeal period. Initially, VA’s grant of service connection for the Veteran’s right ankle disability and his 20 percent rating were effective November 1, 2001, the date following his separation from service. Coincident with the October 2013 arthroplasty, VA changed the applicable Diagnostic Code under which it evaluated the Veteran’s disability from DC 5271 to DC 5056. Under DC 5056, a 100 percent rating is warranted for one year following implantation of the prosthesis. A minimum 20 percent rating is warranted for prosthetic ankle replacement. Intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to DC 5270 or 5271. A maximum 40 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness. The question for the Board in this case is whether the Veteran’s disability has been manifested by an intermediate or a 40 percent disability level involving chronic residuals consisting of severe painful motion or weakness. The Board finds that this a 40 percent disability level is more nearly approximated. The Veteran was afforded a February 2015 VA examination in which he reported flare-ups of the right ankle disability, including decreased range of motion and increasing pain. Range of motion testing revealed plantar flexion to 30 degrees and dorsiflexion to 15 degrees. The examiner indicated post-surgery residuals with intermediate degrees of residual weakness, pain and/or limitation of motion. He stated the Veteran has contributing factors of pain, weakness, fatigability and incoordination, and additional limitation of functional ability during flare-ups or after repetition. The examiner noted the Veteran’s right ankle diagnosis progressed and is now residuals of right ankle arthroplasty with increased pain, weakness and fatigability with repetitive motion. The Veteran submitted a May 2016 substantive appeal which stated following his 2013 right ankle surgery, his right foot remains numb and he has limited motion. He indicated he also experiences severe atrophy of his right calf due to limited activity. The Veteran was afforded an October 2016 VA examination in which he reported his right ankle is very painful. He stated his pain improved following his ankle replacement surgery, but he still has limited range of motion and numbness distal to the ankle. The Veteran reported flare-ups of the disorder described as aching pain and has functional impairment, including limited walking and standing, and no running, jumping or climbing. Range of motion testing revealed dorsiflexion limited to 5 degrees and plantar flexion also limited to 5 degrees. Pain and weakness were noted to cause functional loss, as well as less movement than normal, weakened movement and swelling. Additionally, the examiner found right ankle instability, right calf atrophy and that the Veteran suffers from mild limping. Based on the evidence overall, the Board finds that the right ankle disability more closely approximates the criteria for a higher 40 percent rating under DC 5056 due to severe pain on motion, weakness and limited motion, for the appeal period from December 1, 2014. The probative medical evidence from this period, including the two VA examination reports, shows that the Veteran experiences severe painful motion and limited range of motion in his right ankle. The Board notes in the October 2016 VA examination, the Veteran reported flare-ups, severe ongoing pain and significantly limited range of motion, including limited walking. Further, the examiner noted less movement than normal, weakened movement and swelling. Thus, as severe pain and limited motion were shown, a higher rating of 40 percent is warranted from December 1, 2014. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes an even higher rating of 100 percent under DC 5056 is only warranted for one year following implantation of the prosthesis. Thus, the 40 percent rating awarded to the Veteran is the maximum rating available under DC 5056. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel