Citation Nr: 18153240 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-24 993A DATE: November 27, 2018 ORDER Entitlement to an initial 10 percent disability rating, but no higher, for the service-connected left ankle osteoarthritis for the entire period on appeal prior to June 3, 2017 is granted. Entitlement to a disability rating in excess of 10 percent for the service-connected left ankle osteoarthritis is denied. Entitlement to an initial 20 percent disability rating, but no higher, for the service-connected left forearm disability for the entire period on appeal prior to April 27, 2017 is granted. Entitlement to a disability rating in excess of 20 percent since April 27, 2017 for service-connected left forearm disability is denied. FINDINGS OF FACT 1. The Veteran’s left ankle osteoarthritis has been manifested by mildly limited flexion and occasional flare-ups that do not produce further impairment. 2. The Veteran’s left (dominant) forearm (ulna) disability has been manifested by limitation of pronation, in addition to pain and functional loss. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran’s favor, the criteria for the assignment of a 10 percent rating, but no higher, for the service-connected left ankle disability have been met for the entire period on appeal prior to June 3, 2017; the criteria for a rating in excess of 10 percent have not been met at any time covered by the appeal period. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271-5003 (2017). 2. The criteria for the assignment of an initial 20 percent rating, but not higher, for the period of appeal prior to April 27, 2017, for the service-connected left forearm disability have been met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5299-5206 (2017). 3. The criteria for the assignment of a rating in excess of 20 percent rating from April 27, 2017 onward, for the service-connected left forearm disability have not been met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5299-5206 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from May 2001 to June 2001 and in the Navy from June 2007 to August 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated June 2015 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In that decision, in pertinent part, the RO granted service connection for left ankle osteoarthritis and a left forearm disability, and assigned noncompensable ratings for each disability, effective from September 1, 2014. The Veteran appealed the initial noncompensable ratings assigned. During the pendency of the appeal, the RO issued a rating decision in July 2017 which increased the initial noncompensable disability rating for the left forearm fracture to 20 percent, effective from April 24, 2017; and, which increased the noncompensable disability rating for the left ankle osteoarthritis to 10 percent, effective from June 3, 2017. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In an increased rating claim, the claimant is generally presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35 (1993). Staged ratings, the practice of determining whether separate ratings may apply for different periods of time where a disability varies in severity over the period, applies to both initial ratings and to claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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 pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2017). 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. 38 C.F.R. § 4.45 (2017). When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); see DeLuca v. Brown, 8 Vet. App. 202 (1995). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.71. 1. Entitlement to an increased rating for left ankle osteoarthritis. In a July 2015 rating decision, the Veteran was awarded a service connection for left ankle osteoarthritis with a non-compensable evaluation effective September 1, 2014. The Veteran timely appealed. In a July 2017 rating decision, the RO granted an increase in evaluation to 10 percent effective June 3, 2017. The Veteran contends that he is entitled to a higher evaluation based on pain, popping, flare-ups causing increased pain and swelling, and difficulties while running. The Veteran’s left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271-5003 based on arthritis with noncompensable limitation of motion. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. When, however, the limitation of motion of the specific joints or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of major joints affected by limitation of motion, to be combined, not added under 38 C.F.R. § 4.71, DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Ratings under Diagnostic Code 5003 are not to be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under 38 C.F.R. § 4.71a, DC 5271, for limitation of motion of the ankle, a 10 percent rating is assigned for moderate limitation of motion, and a 20 percent rating is warranted for marked limitation of motion. The standardized description of joint measurement is provided in Plate II under 38 C.F.R. § 4.71. Normal dorsiflexion of the ankle is from zero to 20 degrees. Normal planar flexion of the ankle is from zero to 45 degrees. Words such as “moderate” and “marked” are not defined in the VA Schedule of Rating Disabilities. Use of terminology such as severe by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. The VA Adjudication Procedures Manual, M21 shows examples of moderate and marked limitation of motion of the ankle under DC 5271. An example of moderate limitation of ankle motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. An example of marked limitation of motion is less than five degrees dorsiflexion or less than 10 degrees planar flexion. M21 II.iv.4.A.3l. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. DC 5270 and 5272 apply to disabilities involving diagnosis of ankylosis. DC 5273 applies to calcis or astragalus. DC 5274 applies to astragalectomy. As these conditions are not shown or alleged, DC 5270, 5272, 5773 and 5274 do not apply in this matter. The Veteran’s service treatment records (STRs) contain an in-service VA examination for his left ankle completed in July 2014. The Veteran reported pain and an MRI of the left ankle was performed. A diagnosis of osteoarthritis was confirmed. In May 2015, the Veteran underwent a VA examination of the left ankle. The left ankle was recorded as normal, with no pain observed during the exam, normal range of motion, no localized tenderness or palpation, no instability, and no evidence of crepitus. The Veteran reported pain and stiffness. There was no loss of function after repetitive-use testing and no ankylosis. The Veteran reported mild daily flare-ups. The examiner concluded that the examination neither supports nor contradicts the Veteran’s statements describing functional loss during flare-ups. In June 2017, the Veteran underwent another VA examination of the left ankle. He reported pain, popping, and flare-ups, which he described as periodic increases of pain and swelling with running. The Veteran was taking no medication for his ankle and his condition was found to be stable. The VA examiner concluded the Veteran’s reports of occasional flare-ups to be consistent with the results of the examination. Dorsiflexion was normal and plantar flexion had mild limitation to 35 degrees. The mild abnormal range of motion was not found to contribute to a functional loss. There was no pain recorded during the exam. The ankle displayed normal strength and stability. There were no signs of malunion and no evidence of crepitus. There was no diagnosis for ankylosis. The VA examiner found no additional limitation after repetitive use. The VA examiner concluded that the Veteran’s left ankle disability does not impact his ability to perform occupational tasks. Pursuant to Correia v. McDonald, the Veteran’s left ankle was tested for pain on both active and passive motion, in weight-bearing and non-weight bearing conditions. Correia v. McDonald, 28 Vet. App. 158 (2016). The VA examiner concluded that there was no objective evidence of pain on non-weight bearing conditions and that passive range of motion testing resulted in the same results as active range of motion testing. Likewise, there was no objective evidence of pain on passive range of motion testing. The Board finds the May 2015 and June 2017 VA examinations to be adequate and assigns them probative weight. Based on the foregoing, the Board finds that the Veteran’s overall disability picture more nearly approximates the criteria for the assignment of a 10 percent evaluation for the entire period on appeal prior to June 3, 2017. In essence, the Veteran’s reports of pain have been relatively consistent throughout the appeal period. Likewise, the Veteran’s range of motion has also been mildly limited throughout the appeal period. The Veteran’s ankle osteoarthritis presents normal dorsiflexion. Plantar flexion is mildly limited. As such, the limitation of motion is mild and is neither marked nor moderate under DC 5271. As mentioned above, mild limitation of motion does not warrant a compensable rating under DC 5271. In every instance, such as this, where the schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. §4.31. However, because DC 5003 warrants a 10 percent evaluation for noncompensable limitation of motion, the Veteran is assigned this evaluation based on the objective x-ray evidence of arthritis with noncompensable limitation of motion. A higher evaluation of 20 percent under DC 5271 is not warranted because marked limitation of motion of the ankle never been demonstrated, even as described by the Veteran during a flare-up. Moreover, the Veteran has reported pain, swelling, and flare-ups, which all most closely approximate a 10 percent evaluation under DC 5003. DeLuca v. Brown, 8 Vet. App. 202 (1995). As mentioned above, a rating under DC 5270, 5272, 5273, or 5274 because of absence of ankylosis, calcis or astragalus, or astragalectomy. With respect to the date of the evaluation, the Veteran has consistently reported pain for the entire period on appeal, and is warranted a 10 percent rating based on this reporting. 2. Entitlement to initial increased rating for left forearm (ORIF) fracture. The Veteran seeks a higher rating for his left (dominant) forearm ulna fracture sustained as a result of a motorcycle accident. The Veteran sustained an open fracture to the left wrist ulna bone and was awarded a service connection effective September 2014. The initial noncompensable rating assigned was increased to 20 percent effective April 27, 2017. The Veteran asserts that a higher rating is warranted because of limited function due to pain and painful popping sensation when lifting or twisting. The Veteran’s disability is rated under 38 C.F.R. § 4.71a, DC 5299-5206, most closely analogous to limitation of flexion of the forearm. DC 5206 assigns ratings of 0, 10, 20, 30, 40, and 50 percent where forearm flexion is limited to 110, 100, 90, 70, 55, or 45 degrees, respectively for the major arm. 38 C.F.R. § 4.71a, DC 5206. DC 5207 assigns ratings of 10, 10, 20, 30, 40, and 50 percent where the forearm extension is limited to 45, 60, 75, 90, 100, and 110 degrees, respectively for the major arm. 38 C.F.R. § 4.71a, DC 5207. DC 5208 assigns a 20 percent rating for forearm flexion limited to 100 degrees and forearm extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5208. DC 5210 and 5211 assign evaluations based on nonunion and impairment of the ulna. 38 C.F.R. § 4.71a, DC 5210, 5211. DC 5212 assigns ratings based on impairment of radius. 38 C.F.R. § 4.71a, DC 5212. DC 5213 assigns ratings for limitation of pronation and supination. 38 C.F.R. § 4.71a, DC 5213. 20 percent rating is assigned for limitation of pronation for motion lost beyond last quarter of the arc, in the event the dominant hand does not approach full pronation. 38 C.F.R. § 4.71a, DC 5213. 30 percent rating is assigned for limitation of pronation for motion lost beyond the middle of the arc in the dominant hand. 38 C.F.R. § 4.71a, DC 5213. The record reflects that the Veteran is left handed. In August 2014, the Veteran completed his separation exam. His STRs reflect that he had tenderness on palpation in his left forearm and complained of pain. In May 2015, the Veteran underwent a VA examination on his left forearm. He reported to have flare-ups consisting of pain with use. There was no finding of ankylosis and limitation of flexion and extension of the forearm were within normal limits. In April 2017, the Veteran underwent another VA examination on his left forearm. The Veteran’s pain was noted to result in functional loss. Supination was noted as normal. However, pronation was limited to 60 degrees. There was no finding of ankylosis or crepitus. Strength testing was normal, there was no atrophy and no evidence of malunion of the ulna. The VA examiner noted the limited range of motion constituting a functional loss. Based on the foregoing, the Veteran’s left forearm disability is awarded a compensable rating of 20 degrees, but no higher, for the entire period on appeal prior to April 27, 2017. The Veteran’s 20 percent rating is based on reported pain and flare-ups, which have been persistent during the entire period on appeal prior to April 27, 2017. DeLuca v. Brown, 8 Vet. App. 202 (1995). A higher rating is not warranted because flexion and extension of the left forearm were recorded within normal limits and thus are not compensable under any of the aforementioned diagnostic codes. For the period effective April 27, 2017, a 20 percent rating has already been assigned. That rating is appropriate under DC 5213 because the Veteran’s pronation is limited to 60 degrees while supination remains normal. A higher rating under DC 5213 is not warranted because the limitation of pronation was only lost beyond the last quarter of the arc and not the middle of the arc. There is no indication that flexion and extension were limited to the degree that would warrant a rating in excess of 20 percent under DC 5206, 5207 or 5208. Likewise, DC 5210, 5211, and 5212 do not apply because there was no impairment or nonunion of the ulna and no loss of radius. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kuksova, Associate Counsel