Citation Nr: 18142270 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-28 306 DATE: October 15, 2018 ORDER Entitlement to a rating in excess of 30 percent for right ankle disability is denied. REFERRED ISSUE Entitlement to service connection for nerve damage in the right ankle. As will be discussed in greater detail below, the Veteran is currently service-connected for a right ankle disability under Diagnostic Codes 5010-5270, for his orthopedic complaints. However, in his September 2013 notice of disagreement, the Veteran clarified that he also believes he has permanent nerve damage in the right ankle as a result of the surgery he underwent for his service-connected right ankle disability. As any neurological disability would be separate and distinct from the orthopedic disability, for which the Veteran is already service-connected, the issue of entitlement to service connection for nerve damage in the right ankle is referred to the Agency of Original Jurisdiction to take all appropriate action necessary to develop and adjudicate that claim. 38 C.F.R. § 19.9(b). FINDINGS OF FACT The Veteran’s right ankle degenerative joint disease, status/post right triple artherodesis and first MPJ implant with residuals, has manifested by plantar flexion of at least 30 degrees and dorsiflexion of at least 10 degrees. CONCLUSIONS OF LAW The criteria for a rating higher than 30 percent for right ankle disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5270 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1974 to March 1978. Entitlement to a rating in excess of 30 percent for right ankle disability. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently assigned a 30 percent rating for his service-connected right ankle disability under Diagnostic Codes 5010-5270. Diagnostic Code 5010 addresses arthritis due to trauma, substantiated by X-ray findings; it is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a. Diagnostic Code 5270 addresses ankylosis of the ankle. Generally, ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). A 30 percent rating is assigned when ankylosis is present in plantar flexion between 30 and 40 degrees; or in dorsiflexion between 0 and 10 degrees. The maximum 40 percent rating is assigned when ankylosis is present in plantar flexion at more than 40 degrees; or in dorsiflexion at more than 10 degrees; or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. The Veteran submitted physical therapy records in August 2013 and July 2014. The records indicate that from December 2012 to early January 2013, the Veteran’s right ankle disability manifested in plantar flexion of 20 degrees and dorsiflexion to 10 degrees. From early January 2013 until the end of January 2013, the Veteran’s right ankle disability manifested in plantar flexion of 28 degrees and dorsiflexion to 4 degrees. In February and March 2013, the Veteran’s right ankle disability manifested in plantar flexion of 30 degrees and dorsiflexion to 0 degrees. The Veteran was afforded a VA examination in August 2013. He noted that since his last VA examination, he had undergone surgery on the right ankle because of severe pain and stiffness. He reported that since the surgery, he had been experiencing new symptoms of swelling, stiffness, pain the 1st MPJ (implant), clicking, and numbness involving the front of the foot and toes, as well as continued pain and stiffness. He denied having any flare-ups that impacted the function of his ankle. Upon examination, the examiner found that the Veteran’s right ankle disability manifested in plantar flexion to 20 degrees and dorsiflexion to 10 degrees, with objective evidence of painful motion at those degrees. The Veteran did not, however, experience additional limitation in range of motion of the ankle following repetitive-use testing. Instead, he experienced less movement than normal, pain on movement, swelling, and interference with sitting, standing, and weight-bearing. The examiner also found that the Veteran had ankylosis of the right ankle in good weight-bearing position. The examiner diagnosed the Veteran with status/post right triple arthrodesis and 1st MPJ implant with residual and degenerative joint disease of the ankle, and found that the disability impacted his ability to do a physically demanding job with prolonged standing, walking, and lifting. The examiner also noted that the Veteran occasionally used a wheelchair or cane for his right ankle, but regularly used an orthotic with special soft shoes. There are no range of motion since the August 2013 VA examination. In May 2018 written argument, the Veteran’s representative argued that VA had failed to provide the Veteran with “the most up to date” VA examination. However, he has not stated (and the evidence does not indicate) that his right ankle disability has worsened since August 2013, and there is no competent evidence supporting a finding that the Veteran’s right ankle disability has manifested in in plantar flexion at more than 40 degrees; or in dorsiflexion at more than 10 degrees; or with abduction, adduction, inversion or eversion deformity. Significantly, the mere passage of time does not require VA to provide a new medical examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Based on the foregoing, the Board finds that the Veteran’s right ankle disability manifested in, at worst, ankylosis with plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. Accordingly, the Board finds that a rating in excess of 30 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Additionally, staged ratings have been considered, but because the Veteran’s disability was fairly consistent throughout the period on appeal, a staged rating is not warranted. For the forgoing reasons, the Board finds that the Veteran’s service-connected right ankle disability does not warrant a disability rating in excess of 30 percent. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5270. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Shah, Associate Counsel