Citation Nr: 18145466 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 14-31 811A DATE: October 29, 2018 ORDER Prior to March 12, 2014, a rating higher than 20 percent for right ankle arthritis with scarring is denied; however, beginning March 12, 2014, a 20 percent rating is granted. FINDING OF FACT Prior to March 12, 2014, the Veteran’s right ankle disability was manifested by moderate limitation of motion, but is shown to have marked limitation of motion in the right ankle based on findings dated March 12, 2014. CONCLUSION OF LAW Prior to March 12, 2014, the criteria for a rating higher than 10 percent for right ankle arthritis with scarring have not been met; however, a 20 percent rating has been met from March 12, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Navy from November 1977 to December 1981 and from March 1982 to July 1985. The Board remanded the appeal in April 2018 for a new VA examination; an examination was conducted in July 2018. Entitlement to a rating higher than 10 percent for right ankle scarring and arthritis. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The appeal arises from the original assignment of a disability evaluation following an award of service connection; the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Lastly, it should be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Diagnostic Code 5271 provides the following rating criteria for limitation of motion of the ankle: a 10 percent rating for moderate limited motion and 20 percent, the maximum available, for marked limited motion. For VA compensation purposes, normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The rating schedule does not define the terms “moderate” or “marked,” as used in Diagnostic Code 5271 to describe the degree of deformity of the ankle. Instead, adjudicators must evaluate all the evidence and render a decision that is “equitable and just.” 38 C.F.R. § 4.6. In this case, service connection was initially established for the Veteran’s right ankle at 10 percent disabling, effective July 10, 1985. The Veteran filed a claim in April 2009 seeking a rating higher than 10 percent for his right ankle disability. The October 2009 rating decision continued the 10 percent rating. The Veteran filed another claim for an increase in September 2010; the May 2011 rating decision continued the 10 percent rating. VA treatment records show ongoing symptoms of pain and swelling in his right ankle, treated with pain medication. The Veteran also participated in aquatic rehabilitation to increase range of motion in his ankle, with some good results. The Veteran was afforded a VA examination in August 2009 and the examiner confirmed a diagnosis of right ankle arthritis with spurring. He experienced pain at an 8 out of 10, with flare-ups caused by physical activity. He also described limited walking and standing due to various symptoms. On examination, the examiner noted weakness, tenderness, and guarding of movement. There were no signs of swelling, instability, deformity, or ankylosis. Range of motion was measured to 20 degrees of dorsiflexion and 45 degrees of plantar flexion, both with pain. The ankle joint function was additionally limited by the following after repetitive use: pain, fatigue, weakness, lack of endurance, and pain. In November 2011, the Veteran underwent another VA examination and reported weakness, stiffness, swelling, giving way, lack of endurance, locking, fatigability, tenderness, and pain. He experienced two-hour flare-ups as often as twice per week; the flare-ups were precipitated by physical activity. He also reported difficulty with prolonged walking and standing. Range of motion was measured considered within normal limits; however, the Veteran began to experience pain at 10 degrees of dorsiflexion and 20 degrees of plantar flexion. There was no additional functional loss or limitation after repetitive use. X-ray of the right ankle showed dystrophic calcification along the interosseous membrane and irregularity of the medial and lateral malleolus. Also noted, were incidental calcaneal spurs at the plantaris and Achilles insertion. The Veteran was afforded another VA examination in March 2014 and he reported ongoing symptoms, as well as flare ups during bad weather causing stiffness and his ankle gave out occasionally with sharp pain. Range of motion was measured to 10 degrees of plantar flexion and dorsiflexion, with pain; repetitive use testing did not reveal additional limitation of motion. Muscle strength was slightly decreased but there was no indication of atrophy, instability, or ankylosis. The Veteran used a cane to ambulate due to his knee giving out. During the July 2018 VA examination, the Veteran reported ongoing right ankle problems including instability, pain, stiffness, loss of range of motion, all of which have worsened over time. He also described flare-ups which caused sharp, intense pain on the inside of the ankle. He was unable to walk long distances, stand for prolonged periods, or lift heavy objects. Running and jumping were also difficult. Range of motion was measured to 5 degrees of dorsiflexion and 25 degrees of plantar flexion, both with pain. The limited and painful range of motion prevented deep or repetitive ankle bending and walking on uneven surfaces. However, on examination he could perform repetitive use testing without additional loss of function or range of motion. Muscle strength was slightly reduced at 4 out of 5, active movement against some resistance. There was no muscle atrophy or ankylosis. The Board reiterates that the normal range of motion for an ankle includes dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. Taking all the evidence into consideration, the Veteran had plantar flexion at worst limited to 25 degrees in July 2018, and at best to 45 degrees in August 2009. Dorsiflexion at worst, was to five degrees in July 2018, and at best at best was to 20 degrees in August 2009. At no time was ankylosis reported. Crucially, the March 2014 examination showed decreased muscle strength, giving way, and plantar flexion and dorsiflexion to 10 degrees. Therefore, a rating of 20 percent is granted for marked limitation of motion of the ankle, which is the maximum rating under Diagnostic Code 5271. To meet the criteria for the next highest rating of 30 percent the evidence must demonstrate ankylosis of the ankle with plantar flexion between 30 and 40 degrees, or dorsiflexion between zero and 10 degrees. The evidence indicates that the Veteran’s ROM and functional limitation more closely resemble limitations represented by a 20 percent rating; therefore, the Board finds that a disability rating of 20 percent, and no higher is warranted. Prior to March 12, 2014, the evidence does not show the Veteran is entitled to a higher rating. Specifically, range of motion was found to be normal during the August 2009 VA examination, and although painful motion was noted during the November 2011 examination, it was noted at 10 degrees of dorsiflexion and 20 degrees of plantar flexion. He is in receipt of a 10 percent rating during that period, which accounts for any pain that resulted in limitation of motion. The Board finds that the most probative evidence of record does not support finding more than moderate limitation of motion in the right ankle joint prior to March 12, 2014. Based on the available evidence, a higher rating is not warranted for this period. For the entire period on appeal, the Board notes that it has taken into consideration whether the Veteran experiences/has experienced additional loss of range of motion of his right ankle due to pain or weakness; or if he experiences/has experienced decreased movement, weakened movement, excess fatigability, incoordination, and/or pain on movement because of his ankle condition. In doing so, the Board finds that the VA examination reports of record and post-service medical records in the claims file do not contain sufficient evidence upon which to grant an increase in the Veteran’s disability rating because of the above-referenced symptomatology prior to March 2014. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. (quoting 38 C.F.R. § 4.40). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Painful motion without functional limitation, however, cannot serve as the basis for a rating higher than the minimum. Mitchell, supra. Here, the Veteran has already been compensated for painful motion and any functional loss. A higher rating cannot be based on medical speculation and certainly not lay speculation. 38 C.F.R. § 3.102. Neither the Veteran nor the Board can speculate and arbitrarily pick a disability rating; there must be a basis in fact for the assigned rating. Id. Thus, a higher evaluation cannot be awarded based on speculation of additional functional loss during after repetitive use over time or flare-ups. Therefore, the Board finds that such factors, including consideration of the Veteran’s lay statements, do not result in functional loss more nearly approximating the limitation of flexion in the right ankle to warrant a rating higher than 10 percent prior to March 2014, or higher than 20 percent thereafter. See DeLuca, 8 Vet. App. at 207-08; Mitchell, 25 Vet. App. 32. The Board notes that, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Therefore, this VLJ expands upon the wisdom advanced in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. Here, his statements regarding flare-ups would not warrant a higher evaluation based upon flare-ups, because such flare-ups do not additionally limit function in a quantifiable way and are not of such length or duration that additional staged ratings would not violate the rule regarding stabilization of ratings. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the reports of exacerbation or flare-ups are not quantifiable and not of sufficient duration to warrant a change in the Veteran’s ratings without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1 and the rule regarding stabilization of ratings. (Continued on the next page)   Thus, a rating higher than 10 percent prior to March 12, 2014, for the Veteran’s right ankle disability is not warranted, but a 20 percent rating, thereafter, is warranted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel