Citation Nr: 18147621 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-25 879 DATE: November 5, 2018 ORDER Entitlement to an initial increased rating for osteoarthritis of the left ankle is denied. FINDING OF FACT The Veteran has had no more than moderate limitation of motion of the left ankle with pain and without further limitations due to any functional loss. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a left ankle disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from November 2008 to August 2013, with additional periods of active duty for training (ACDUTRA) from February 2004 to June 2004 and from June 2006 to September 2006. The claim is before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an increased rating for a left ankle disability Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that a Veteran is competent to report on that of which he has personal knowledge). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's service-connected left ankle disability has been assigned a 10 percent disability rating throughout the appeal period under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion. Degenerative and/or traumatic arthritis as shown by X-ray studies is rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Codes 5270 and 5271 assign disability ratings based on limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limitation of motion. A 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. While the schedule of ratings does not define "moderate" or "marked" limitation of ankle motion, a decision is based on the evidence of record. Higher ratings are assignable under Diagnostic Code 5270 for ankylosis of the ankle. Under Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees warrants a 20 percent rating. If ankylosed in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, a 30 percent rating is warranted. If ankylosed 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 rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Normal range of motion of the ankle includes plantar flexion from 0 degrees to 45 degrees and dorsiflexion (extension) from 0 degrees to 20 degrees. 38 C.F.R. § 4.71a, Plate II. The intent of the Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The RO has assigned a 10 percent rating for the Veteran's left ankle disability. Based on a review of the relevant evidence and the applicable law and regulations, it is the Board's conclusion that the evidence most nearly approximates the current assignment of a 10 percent rating, and no higher, for the Veteran's left ankle disability for the entire relevant period. Turning to the relevant evidence of record, the Veteran attended a VA examination for her left ankle in June 2015. At the examination, the Veteran had plantar flexion to 20 degrees and dorsiflexion to 10 degrees. The Veteran performed repetitive use testing with no loss of range of motion. The Veteran had pain with dorsiflexion and plantar flexion, but no noted fatigue, weakness, or lack of endurance during range of motion testing, including after repetitive use testing. The examiner noted that testing after repetitive use over time indicated that pain significantly limited functional ability, but indicated that range of motion findings were the same as those noted prior to repetitive use over time testing. The examiner noted the Veteran had mild pain with palpation, disturbance of locomotion, an antalgic gait, no ankylosis, and did not use any assistive devices. The Veteran reported no specific flare-ups. The examiner indicated the current level of severity of the condition was mild and stable. The Veteran attended private physical therapy sessions for her left ankle disability in October, November, and December of 2014. These private treatment records indicate that at the outset of such treatment in October 2014, the Veteran had plantar flexion to 17 degrees. The Board notes that the Veteran’s dorsiflexion was recorded as “-15°”, however a dorsiflexion measurement cannot be lower than 0 degrees. 38 C.F.R. § 4.71a, Plate II. Even if this note represents fifteen degrees of limitation, which would be to 5 degrees of dorsiflexion, such findings do not more nearly approximate a marked limitation of motion to warrant a higher disability rating. During the course of physical therapy, the Veteran’s range of motion increased to -5 degrees of dorsiflexion and 42 degrees of plantar flexion. The Board notes the Veteran's contentions in the May 2016 VA Form 9 that the Veteran should be rated higher for her ankle disability. In particular, the Veteran contends that because her ankle was fused to 0 degrees dorsiflexion in 2013, she is entitled to a higher left ankle disability rating and that she has ankylosis. However, the Board notes that at the June 2015 VA examination, the Veteran had left ankle dorsiflexion to 10 degrees and the examiner indicated she did not have ankylosis. Therefore, the objective medical evidence of record is contrary to the Veteran’s contentions regarding the limitation of motion she experiences from her ankle fusion. The Board places greater weight of probative value on the objective medical evidence, as the exact measurement of limitation of motion requires medical skill and expertise and is not subject to the opinion of a lay person. In evaluating the Veteran's increased rating claim, the Board must address the provisions of 38 C.F.R. §§ 4.40, 4.45. The Board recognizes the Veteran's complaints of pain as a result of her left ankle disability, notably her difficulty with prolonged standing and walking. When considering the reports of functional loss after repetitive use over time as shown by the June 2015 VA examination and the Veteran's reports of pain, the evidence shows the Veteran’s motion was limited to 10 degrees in dorsiflexion and 20 degrees in plantar flexion in the left ankle at the June 2015 VA examination. The 2014 private treatment evidence reflects the highest limitation of motion was to 5 degrees dorsiflexion and to 17 degrees of plantar flexion. Even when considering the reported pain and associated functional loss, the Veteran's disability picture does not more nearly approximate marked limitation of motion at any time during the appeal period. Thus, a rating in excess of 10 percent is not warranted for the entire period. As the evidence of record does not reflect that there was any ankylosis of the left ankle at any point during the appeal period, a rating in excess of 10 percent under Diagnostic Code 5270 is not warranted. See 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5270. Increased evaluations under other potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). As discussed above, the findings show that the Veteran's left ankle disability is a musculoskeletal disability manifested by painful motion and thus has been appropriately rated under Diagnostic Code 5271. The evidence of record does not show that the Veteran has ankylosis, a heel bone fracture, or has had an astragalectomy. Therefore, a rating under Diagnostic Codes 5272-5274 is not warranted. 38 C.F.R. §§ 4.7, 4.71a. Regarding whether referral for an extraschedular rating is appropriate, such has not been raised by the Veteran or reasonably raised by the record and will not be further discussed herein. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In sum, the criteria for a rating in excess of 10 percent for a left ankle disability have not been met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K Pak, Associate Counsel