Citation Nr: 18151085 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-43 215 DATE: November 16, 2018 ORDER Entitlement to an initial 10 percent rating, and no higher, for residuals of a right ankle fracture is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT The appellant’s residuals of a right ankle fracture is manifested by pain and subjective weakness with flare-ups in the form of additional pain, which cause him to sit if it is not time for him to take his back pain medicine. The disability is not characterized by marked limitation of motion, ankylosis, or functional impairment such that no effective function would remain other than that which would be equally well-served by amputation with prosthesis. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 10 percent, and no higher, for residuals of a right ankle fracture have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the Navy from May 1979 to February 1983. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for residuals of a right ankle fracture and assigned an initial noncompensable rating, effective July 17, 2014. The appellant filed a timely Notice of Disagreement (NOD), received in September 2015. A Statement of the Case (SOC) was issued in August 2016. A timely substantive appeal was received in September 2016. Before the appeal was certified to the Board, in an April 2018 rating decision, the RO increased the rating for the residuals of a right ankle fracture to 10 percent, effective December 13, 2017. Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the issue certified to the Board was entitlement to an initial compensable rating for residual of right ankle fracture prior to December 13, 2017, and in excess of 10 percent thereafter. Background The appellant sustained a nondisplaced fracture of the right distal fibula in June 1981 while on active duty. He was treated with a cast. In November 1981, he reinjured his ankle playing football. X-ray studies at that time showed a healed fracture with good callous formation. He had good range of motion without swelling or discoloration. In July 2014, he submitted an original application for VA compensation benefits, seeking service connection for multiple disabilities, including a right ankle disability. The appellant was afforded a VA examination in August 2015. The claims file was reviewed. The appellant reported medial ankle pain. Flare-ups were denied. The appellant likewise denied functional loss or impairment. Range of motion testing revealed full range of motion in the right ankle. Dorsiflexion was to 20 degrees; and plantar flexion was to 45 degrees. There was no evidence of pain with weight-bearing, objective evidence of localized tenderness or pain on palpation, or crepitus. There was no limitation of motion following repetitive-use testing. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength was 5/5 for plantar flexion and dorsiflexion. There was no atrophy. There was no ankylosis. No ankle instability or dislocation was suspected. He did not have shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, or malunion of calcaneus (os calcis) or talus (astragalus). He had not undergone talectomy (astragalectomy). No assistive devices were used. Amputation with prosthesis would not equally serve the appellant. Imaging studies were negative for arthritis. Imaging studies were significant for healed lateral malleolus fracture and stable tibial intramedullary nail (IMN). There was no impact on the appellant’s ability to work. The appellant was afforded a VA examination in December 2017. The appellant reported that, following his active service, he was shot in his right lower leg. Surgery was performed and a rod was installed. The appellant reported right ankle pain and weakness. The examiner stated that the appellant pointed to the portions of his right lower extremity affected by his post-service injury and surgery when discussing pain. He reported that he uses a cane, but did not bring it to the examination. He endorsed stiffness but denied swelling, heat, locking, giving way, subluxation, or dislocation. Flare-ups were endorsed in the form of intermittent pain of variable degree. He takes hydrocodone for all of his pains, primarily for his back, but it also helps his ankle. When he experiences ankle pain, he will sit down. If it is time for his back pain medicine, he will take the hydrocodone. He did not report any functional loss or impairment of the ankle. Range of motion testing revealed dorsiflexion to 10 degrees and plantar flexion to 35 degrees. Range of motion itself did not contribute to a functional loss. Pain was observed on dorsiflexion and plantar flexion. There was no evidence of pain with weight bearing. There was objective tenderness on the fibular side of the ankle, which the examiner noted was the site of his in-service right ankle injury. There was also tenderness on the portions affected by his post-service tibial fracture repair. There was no crepitus. Muscle strength was 5/5 and there was no atrophy. There was no atrophy. Anterior drawer and talar tilt tests were negative. He did not have shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, or malunion of calcaneus (os calcis) or talus (astragalus). He had not undergone talectomy (astragalectomy). No scars were attributable to his service-connected right ankle disability. He made occasional use of the cane. Amputation with prosthesis would not equally serve the appellant. With respect to functional impact, the appellant was able to perform all activities of daily living without assistance. Potential work-related limitations may include prolonged squatting and prolonged periods of weight-bearing. The VA examiner noted that the appellant’s post-service injury affected his gait, which did have an effect on the right ankle. There was no imaging study evidence of arthritis. Applicable Law 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. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous. . . .” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. The appellant’s residual of right ankle fracture is rated under Diagnostic Code (DC) 5271. A Moderate limitation of motion warrants a 10 percent rating, while marked limitation of motion warrants a maximum 20 percent rating. 38 C.F.R. § 4.71a, DC 5271. Analysis While the evidence indicates that the appellant had post-service injury to his right lower extremity, the Board affords the appellant the benefit of the doubt that all right ankle symptoms are attributable to his service-connected residual of right ankle fracture. Upon weighing the evidence, the Board finds that the evidence is in relative equipoise as to whether an initial 10 percent rating is warranted. The preponderance of the evidence is against the award of a rating in excess of 10 percent for any portion of the period on appeal. The appellant has not experienced marked limitation of motion of the ankle. Rather, range of motion was full per the August 2015 examination report. Flexion was 45 degrees and dorsiflexion was 20 degrees; and repetitive-use testing revealed no additional loss of range of motion. In December 2017, flexion was 35 degrees and dorsiflexion was to 10 degrees. 38 C.F.R. § 4.71a, Plate II reveals that normal plantar flexion is 45 degrees and normal dorsiflexion of the ankle is 20 degrees. Thus, the appellant had full range of motion in August 2015 as to both flexion and dorsiflexion. The Board finds that 100 percent of normal flexion and dorsiflexion does not more nearly approximate marked limitation of motion of the ankle (i.e., approximately 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 35 degrees of flexion is 77 percent of full flexion; and 10 degrees of dorsiflexion is 50 percent of full dorsiflexion. The Board also finds that such does not more nearly approximate marked limitation of motion of the ankle. In addition, no examiner has ever characterized the appellant’s limitation of motion as marked. Rather, the record shows that the appellant experienced no more than moderate limitation during the period on appeal. The appellant’s right ankle strain has been primarily characterized by pain and stiffness. Examination was negative for objective evidence of pain during range-of-motion testing in August 2015, although the appellant has reported pain. While the appellant has competently reported such, examination revealed that pain did not impair range of motion, including after repetitive testing. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain “must actually affect some aspect of ‘the normal working movements of the body’ [under] 38 C.F.R. § 4.40 in order to constitute functional loss” warranting a higher rating). The December 2017 examiner noted evidence of pain, however. Further, pain alone does not warrant a higher rating; rather, pain alone does not constitute functional loss, but is just one fact to be considered when evaluating functional impairment. Id. The Board has considered the appellant’s competent reports of ankle stiffness and pain, and flare-ups characterized by intermittent pain of variable degree. The Board finds that ankle stiffness and pain, in addition to flare-ups during which the appellant experiences intermittent pain of varying degree, does not more nearly approximate marked limitation of motion of the right ankle. The appellant stated that such flare-ups required him to sit down. If it was time for his back pain medicine, he would take his hydrocodone, which also helps his ankle. Assigning a rating in excess of 10 percent for such flare-ups would violate the rule regarding stabilization of ratings. See 38 C.F.R. § 3.344. Accordingly, the criteria for a rating greater than 10 percent under DC 5271 have not been met or more nearly approximated. Moreover, examination has made clear that the appellant does not have ankylosis of the right ankle such as to warrant an evaluation under DCs 5270 or 5272. Likewise, examination has made clear that he does not have malunion of os calcis or astragalus, or astragalectomy so as to warrant an evaluation under DCs 5273 or 5274. See 38 C.F.R. § 4.71a. The evidence establishes that amputation with prosthesis would not equally serve the appellant. A maximum 20 percent rating under DC 5010 for arthritis requires X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. However, there is no imaging evidence of arthritis. Rather, imaging studies were negative for such in 2015, as noted supra. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to an initial 10 percent rating, and no higher, residual of right ankle fracture. (Continued on the next page) K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel