Citation Nr: 18152913 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 14-23 298 DATE: November 27, 2018 ORDER Prior to August 28, 2018, a rating in excess of 10 percent for lateral collateral ligament sprain with tendonitis status-post right ankle fracture (right ankle disability) based on limitation of motion is denied. A rating of 20 percent rating, but no higher, for right ankle disability based on limitation of motion is granted, effective August 28, 2018, subject to the laws and regulations governing the payment of monetary awards. FINDINGS OF FACT Prior to August 28, 2018, the Veteran’s right ankle disability has been manifested by moderate limitation of motion. As of August 28, 2018, the Veteran’s right ankle disability has been manifested by marked limitation of motion. CONCLUSIONS OF LAW Prior to August 28, 2018, the criteria for a rating in excess of 10 percent for right ankle disability based on limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5271. As of August 28, 2018, the criteria for a rating of 20 percent for right ankle disability based on limitation of motion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to June 1973 and April 1980 to October 2002, with additional service in the Army Reserve. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in October 2012 and April 2014 by a Department of Veterans Affairs (VA) Regional Office. In March 2018, the Board remanded the issue on appeal, as well as the appeal for service connection for left ankle disorder, for additional development. In an October 2018 rating decision, the Agency of Original Jurisdiction granted service connection for left ankle sprain with tendonitis. Therefore, no further discussion is necessary regarding the Veteran’s claim for entitlement to service connection for a left ankle disorder. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). Increase Rating The Veteran asserts that his right ankle right ankle disability warrants a higher rating. The Veteran reports that he has limited ability to move and function due to pain and fatigue. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability evaluations 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 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. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The U.S. Court of Appeals for Veterans Claims (Court) has held that 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 provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C § 7104(a). When there is an approximate balance of 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; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a Veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veteran’s service-connected right ankle disability has been rated as 10 percent disabling under Diagnostic Code 5271 for moderate limitation of motion of the ankle. 38 C.F.R. 4.71a. Under Diagnostic Code 5271, a maximum 20 percent rating is assigned for “marked” limitation of motion of the ankle. Words such as “moderate” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.71a. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Prior to August 28, 2018, the Veteran reported subjective symptoms of right ankle pain. For example, in a February 2013 correspondence, the Veteran reported experiencing slow degeneration of his “ankle capabilities.” He reported “chronic pain” and “chronic strain” in his right ankle. A February 2014 VA ankle examination report reflects the Veteran’s subjective reports of ankle pain; however, objective testing did not reveal limitation of motion in the right ankle. The Veteran assessed his ankle pain as “four” on a scale from one to ten, ten being the value representing the most painful. Additionally, the Veteran reported flare-ups that equate to a “nine”. He stated that he did a lot of walking but had worse pain when standing longer than ten to fifteen minutes. Range of motion testing demonstrated plantar flexion to 40 degrees or greater and dorsiflexion to 20 degrees or better. The examiner found no objective evidence of pain during plantar flexion tests but evidence of pain during dorsiflexion tests at 20 degrees or greater. In addressing the Veteran’s reports of flare-ups, the examiner stated that “it would be mere speculation to give my opinion on any additional loss of degrees of range of motion during flare-up or over a period time.” The examiner added that the Veteran did not display “significant loss of range of motion during repetition while doing the exam, and he did not have any flare-ups during the exam.” Additionally, in a January 2017 correspondence, the Veteran maintained that he has limitation of function due to the severity of his right ankle pain. The Veteran reported that he frequently takes Motrin to treat his daily ankle pain. The Veteran also stated that he had to “miss out on activities because of low tolerance bearing weight on my ankle.” Specifically, he was no longer able to jog or golf “because of intolerance and fear of re-injury.” Based on this evidence, the Board finds the Veteran’s subjective reports of right ankle pain, limitation of walking and standing, and functional limitation of activities (e.g. jogging and golfing) more closely approximate moderate limitation of motion prior to August 28, 2018. Here, the Board has considered both flare ups and functional impairment after repetitive motion. In this regard, VA examination in February 2014 did not demonstrate any limitation of motion, and the examiner found the Veteran did not display significant loss of range of motion during repetition. Additionally, although the February 2014 VA examination had not been performed during a flare-up, the Board finds the Veteran’s reports of pain and stiffness associated with flare-ups are adequately accounted for by the assigned 10 percent rating for the period. DeLuca v. Brown, 8 Vet. App. 202 (1995). Moreover, the Veteran did not report limitation of motion but rather functional impairment. As a result, the Board finds the maximum 20 percent rating based on limitation of motion is not warranted prior to August 28, 2018. However, the Board finds that a 20 percent rating for right ankle disability based on limitation of motion is warranted effective August 28, 2018, the date of an August 2018 VA examination. Initially, the Board notes the record does not include clinical evidence after the August 2018 examination report, and therefore, the Board relies solely on the examination for the determination herein. However, as the Board grants the maximum rating for the period, there is no prejudice to the Veteran. The examination report documents the Veteran’s continual right ankle pain, stating that it was “painful to walk, climb, or run.” Range of motion testing demonstrated plantar flexion to 30 degrees and dorsiflexion to 15 degrees. The examiner found evidence of pain during plantar flexion and dorsiflexion tests. The examiner noted that there was “no additional loss of function or range of motion following repetitive-use testing.” The examiner also stated that “[i]t is not possible to determine, without resort to mere speculation, estimate loss of range of motion [during flare ups] because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” As the August 2018 examination report reveals objective limitation of dorsiflexion and plantar flexion, the Board finds the Veteran’s right ankle disability resulted in signs and symptoms that more closely approximate marked limitation of motion. As such, a 20 percent rating for right ankle disability based on limitation of motion is warranted, effective August 28, 2018. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board turns next to consideration of any separate ratings permissible for associated symptoms of the Veteran’s service-connected right ankle disability. Here, however, the evidence does not reflect ankylosis of the ankle or subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. As such, separate ratings under Diagnostic Codes 5270, 5272, 5273, or 5274 are not warranted. 38 C.F.R. § 4.71a. In conclusion, the overall disability picture created by the Veteran’s own descriptions of his right ankle symptomatology and the objective medical evidence of record supports the award of the increased rating granted herein during the period on appeal. The Board has considered the benefit of the doubt in assigning such; however, the preponderance of the evidence does not support the assignment of higher ratings or additional, separate ratings. See 38 C.F.R. §§ 4.40, 4.45, 4.71a; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel