Citation Nr: 18145178 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-37 929 DATE: October 26, 2018 ORDER Entitlement to an initial evaluation of 20 percent, and no greater for the service-connected residuals, right distal fracture with degenerative arthritis (DA) right ankle is granted. FINDING OF FACT Beginning May 19, 2014, the medical evidence shows that the service-connected residuals, right distal fracture with DA are manifested by marked, but no greater, range of motion, without findings of ankylosis, malunion of the os calcis or astragalus, or astragalectomy. CONCLUSION OF LAW Beginning May 19, 2014, the criteria for an initial evaluation of 20 percent, and no greater for the service connected residuals, right distal fracture with DA have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.59, 4.71a, Diagnostic Codes (DCs) 5010-5271 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active military service with the U.S. Air Force from August 1971 to May 1975, and with the U.S. Army from August 1976 to January 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs. Entitlement to an initial evaluation greater than 10 percent for the service-connected residuals of right distal fracture with DA. Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Separate DCs identify the various disabilities. See 38 U.S.C. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes (DCs), known as pyramiding, must be avoided. 38 C.F.R. § 4.14. Degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate DC for the specific joint involved. Arthritis due to trauma substantiated by x ray findings will be rated as degenerative arthritis. See 38 C.F.R. § 4.71a, DCs 5003, 5010. Where there is painful motion of a joint that is otherwise noncompensable under the appropriate DC for the specific joint involved, a rating of 10 percent will be assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a. DC 5271 provides the criteria for rating limitation of motion of the ankle. The standard ranges of motion of the ankle are zero to 20 degrees ankle dorsiflexion, and zero to 45 degrees ankle plantar flexion. 38 C.F.R. § 4.71, Plate II. Moderate limitation of motion of the ankle warrants a 10 percent evaluation under DC 5271. Where there is ankylosis in the ankle joint of plantar flexion motion less than 30 degrees, a 20 percent evaluation is warranted; between 30 and 40 degrees or in dorsiflexion between zero and 10 degrees, a 30 percent evaluation is warranted; and in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity, a 40 percent evaluation is warranted under DC 5270. Where ankylosis is present in the subastragalar or tarsal joint in a good weight-bearing position, a 10 percent evaluation is afforded; where such ankylosis is present in a poor weight-bearing position, a 20 percent evaluation is afforded under DC 5272. Where there is malunion of the os calcis or astragalus is present with moderate deformity, a 10 percent evaluation is assigned; where there is marked deformity, a 20 percent evaluation is assigned under DC 5273. And, where astragalectomy is present, a 20 percent evaluation is warranted under DC 5274. 38 C.F.R. § 4.71a. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In the present case, service connection for residuals, right distal fibular fracture with DA was granted by a January 2015 rating decision, and a 10 percent evaluation was assigned under DC 5003-5271 for painful motion of the ankle with x ray evidence of DA in the joint effective May 19, 2014, the date of service connection. The Veteran disagreed with the initial evaluation assigned. A January 2015 VA examination shows range of right ankle motion at zero to 5 degrees dorsiflexion, and zero to 15 degrees plantar flexion as compared to zero 25 degrees dorsiflexion, and zero to 20 degrees plantar flexion on the left. Included in these measurements are findings of significant limitation of functional use over time due to additional pain, weakness, fatigability and incoordination on repetitive use on of the right ankle, less movement than normal, stiffness and pain on motion with pain on weight bearing, and fatigue, weakness, lack of endurance and incoordination, swelling, instability of station, disturbance of locomotion, and interference with standing on flare-ups and as contributing factors of disability in the right ankle. In comparison, none of these findings were observed on the left. The VA examiner further observed objective evidence of localized tenderness on palpation of the medial aspect of the right ankle and laxity, as compared to the left side. Medial deviation to the right was measured at zero to five degrees and lateral deviation was measured at zero as compared to zero to 20 degrees and zero to 70 on the left, respectively. The Veteran was observed to walk with a slight limp on the right, and to use high top boots constantly for comfort and added stability. DA was confirmed by x ray findings. These findings meet the criteria for marked limitation of motion in the right ankle; the “significant” impacts of pain on function over time must be given full consideration. However, an evaluation greater than 20 percent is not warranted. The only DC offering an evaluation greater than 20 percent is for ankylosis, which is shown only in lateral deviation, and not in plantar flexion or dorsiflexion as is called for under DC 5270. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L.J. Bakke, Counsel