Citation Nr: 18146039 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-28 933 DATE: October 30, 2018 ORDER An initial rating in excess of 10 percent for left ankle strain with ligament injury, status post lateral ligament repair with surgical scar, is denied. FINDINGS OF FACT The Veteran left ankle disability manifests by no more than moderate limitation of motion of the left ankle and a small surgical scar that is not painful or unstable. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for left ankle strain with ligament injury, status post lateral ligament repair with surgical scar, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271, 4.118, Diagnostic Codes 7801 to 7805 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Initial rating in excess of 10 percent for left ankle strain with ligament injury, status post lateral ligament repair with surgical scar The Veteran appealed from the November 2013 rating decision that awarded service connection and assigned an initial rating for her left ankle disability, effective since July 3, 2012. She contends in her November 2014 notice of disagreement and June 2016 substantive appeal (VA Form 9) that a higher rating is warranted for her left ankle based on significant or marked limitation of motion. VA’s schedular percentage ratings are based on average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The most relevant information for an initial rating pertains to the severity of the disability since the effective date of service connection, and staged ratings may be awarded if there are changes in symptomatology that meet the criteria for a different rating for a distinct period. Fenderson v. West, 12 Vet. App. 119 (1999). A separate rating may be assigned for non-overlapping conditions and symptoms, if the compensable criteria under the applicable code(s) are met. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); 38 C.F.R. § 4.14. A minimum 10 percent rating will be assigned for painful motion using an applicable diagnostic code. See Sowers v. McDonald, 27 Vet. App. 472 (2016); 38 C.F.R. § 4.59. A separate or higher rating may be awarded for musculoskeletal conditions based on range of motion if there is additional functional loss after repetitive use or flare-ups due to pain or other factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016); 38 C.F.R. §§ 4.10, 4.40, 4.45. 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 ankle warrants a 10 percent rating for moderate limited motion, or a 20 percent rating for marked limited motion. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271. Words such as “moderate” and “marked” are not defined; instead, VA must evaluate all evidence to arrive at an equitable and just decision as contemplated by the requirements of applicable laws. See 38 C.F.R. §§ 4.2, 4.6. This decision focuses on the evidence pertinent to the rating criteria and disability severity during the relevant period on appeal; however, the Board has considered the entire record and history to have a full picture of the disability. See 38 C.F.R. §§ 4.1, 4.2, 4.41; see also Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Although the Veteran believes her range of motion meets the criteria for “marked” limited motion, she is not competent to make this determination because this is a factual determination to be made by the Board as the adjudicator. As summarized below, the Board finds that the Veteran’s reports concerning the extent of her additional loss during flare-ups and after repetitive use are competent and credible. However, the subjective and objective evidence demonstrate no more than moderate limited motion of the ankle, as well as an asymptomatic surgical scar. The Veteran was provided a VA examination for her left ankle in October 2013. She reported a history of ankle instability after her injury during service, that she had an ankle surgery in 1995 and again in 2007 after another injury. She described left ankle pain, especially with cold weather, that continued after the 2007 surgery and currently and requires significant analgesics on occasion. The Veteran further reported that her left ankle had been less prone to rolling since the 2007 surgery on the lateral ligaments. She described flare-ups as involving pain on a weekly basis lasting for 1-2 days, and that she uses analgesics and ice to relieve at those times. The Veteran described her residuals of ankle surgeries as being soreness at the extremes of plantar or dorsiflexion, or range of motion, or with inversion/eversion stress, which is a part of joint stability or laxity testing. The Veteran also reported using an ankle brace regularly when she is going to be active or do much standing. Testing during this examination demonstrated range of motion to 45 degrees or greater of ankle plantar flexion and 20 degrees or greater of dorsiflexion, including for the point at which objective pain occurs and after repetitive use testing. The examiner noted that the Veteran would have additional functional loss or decreased range of motion after repetitive use due to pain and other factors, and that pain, weakness, and fatigability could significantly limit functional ability during flare-ups or after repeated use over time. The examiner was unable to provide an opinion as to additional loss of range of motion in terms of degrees because the Veteran could not replicate the described flare-ups during the examination. Testing of muscle strength and joint stability (laxity) was normal. The examiner commented that, if anything, there was less motion with the injured ankle, specifying that there was less inversion/eversion laxity. The examiner noted that surgery had left the Veteran with less inversion/eversion movement, but that plantar and dorsiflexion were not impacted. There was no ankylosis or other abnormality of the ankle. The examiner’s summary of the Veteran’s medical history is consistent with information in her service records and private records from the 1990s and 2007. Records from 2007 noted that she had rolled her ankle and had arthroscopic surgery in May 2007 for recurrent ankle instability. A July 2007 record then noted that the Veteran had excellent stability and good range of motion after surgery. In her 2014 notice of disagreement, the Veteran specified that she desires a 20 to 30 percent rating based on marked limitation of motion, which she identified as being to 30 degrees of plantar flexion and mild limitation of inversion resulting in decreased range of motion. The Veteran submitted private medical records dated in November 2014, which indicate that she was requesting documentation of her limited motion of ankle for her VA claim. However, no range of motion was recorded at that time, and the records only note her prior history for the ankle. The Veteran did not authorize VA to obtain non-VA records, and there is no indication that any such records would have a reasonable likelihood to substantiate her claim. In her 2016 substantive appeal, the Veteran cited to regulations concerning painful motion and functional loss due to pain and other factors after repetitive use or during flare-ups. She further stated that she was willing to undergo another examination to document her limited range of motion, but she did not indicate that her range of motion had changed or that her disability had increased in severity. Instead, the Veteran has consistently asserted that she has marked or significant limitation of motion of the ankle. Thus, a remand for another examination is unnecessary because it would not have a reasonable likelihood of substantiating her claim and would only result in additional delay. As noted the above, the 2013 VA examiner was unable to provide an estimate concerning degree of additional loss of motion during flare-ups. However, the Veteran has provided competent descriptions of her observable functional loss during flare-ups and provides an estimate as the degree of additional range of motion, and those reports are credible because they relatively consistent with the notations made by the VA examiner. Although the Veteran had normal ranges of motion during testing in 2013, she was assigned a minimum 10 percent rating for her left ankle disability based on painful motion. This accounts for her pain at the ends of range of motion, as well as her reports of additional pain and functional loss during flare-ups or after repetitive use. In 2014, the Veteran identified decreased motion to approximately 30 degrees of plantar flexion during such episodes, which is a loss of approximately 15 degrees from the normal range to 45 degrees. This is consistent with the VA examiner’s notation that she would have significant additional loss after repetitive use or flare-ups; however, it is still a loss of less than half of the full range of motion. The Veteran also described having mild limitation of inversion resulting in decreased motion in 2014. This is consistent with the VA examiner’s notation that she has less inversion/eversion laxity since her ankle surgery, and she had no instability or laxity shown through testing of inversion/eversion stress and otherwise. It is also consistent with notations in private records that the 2007 surgery addressed recurrent instability or laxity and that she had excellent stability after that surgery. The Board finds that these degrees of limitation and functional loss, including during flare-ups or after repetitive use, amount to no more than moderate limited motion. Therefore, a higher rating of 20 percent cannot be assigned based on limited motion under DC 5271. 38 C.F.R. § 4.71a. Additionally, although the Veteran wears a brace on her ankle on a regular basis, which she reported is to stabilize the ankle, she does not have nonunion or malunion of the tibia or fibula so as to warrant a separate or higher rating for non-overlapping symptoms under DC 5262. See 38 C.F.R. §§ 4.14, 4.71a. Furthermore, although nonunion with loose motion requiring a brace warrants a 40 percent rating, her impairment in this regard is not analogous to such disability. See 38 C.F.R. § 4.20. The Veteran does not have loose motion of the ankle and, in fact, both the Veteran and the VA examiner specified that she has less laxity or movement than normal since her ankle surgery. Her self-described mild decrease in motion with inversion stress also is not consistent with a 40 percent rating. Rather, the Veteran’s moderate limited motion of the ankle, including as due to increased pain, weakness, fatigability, or other factors after activities or prolonged standing, is contemplated by the assigned 10 percent rating under DC 5271. There is no argument or indication of another potentially applicable diagnostic code. Finally, the Veteran has a scar from her left ankle surgery. Although the criteria for rating scars changed in August 2018, the criteria remained essentially the same as relevant to this appeal. A compensable rating requires that a scar cover a total area of at least 39 square cm (6 square inches) (DC 7801 or 7802), that the scar itself is painful or unstable (DC 7804), or that there are other disabling effects from the scar (DC 7805). See 38 C.F.R. § 4.118 (2013 & 2018). Those criteria are not met here, as noted in the VA examination, and the Veteran does not assert otherwise. (CONTINUED ON NEXT PAGE)  In sum, reasonable doubt has been resolved to the extent possible in this case; however, there is no further doubt to be resolved, and a higher initial evaluation for the Veteran’s left ankle disability must be denied. 38 C.F.R. §§ 4.3, 4.71a, 4.118. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Wheatley