Citation Nr: 18154700 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 09-25 085 DATE: November 30, 2018 ORDER The claim of entitlement to an evaluation in excess of 30 percent for a left ankle disability is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s left ankle disability manifested with, at most, marked limitation of motion without ankylosis of the ankle; the subastragalar or tarsal joint; malunion of os calcis or astragalus; or an astragalectomy. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5270 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from February 1965 to February 1967. The claim of entitlement to an evaluation in excess of 30 percent for a left ankle disability The Veteran contends that he is entitled to an evaluation in excess of 30 percent for his left ankle disability. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. 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 rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, 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); 38 C.F.R. § 4.2. VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret 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. VA is also required to evaluate 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. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Veteran seeks a higher rating for his service-connected left ankle disability. The Veteran’s service-connected degenerative joint disease of the left ankle is rated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5270, effective from August 22, 2006. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. In this case, the Veteran is rated under Diagnostic Code 5010 for degenerative joint disease and Diagnostic Code 5270 for ankylosis of the ankle. It is unclear why the Veteran is receiving an evaluation for ankylosis when he is not diagnosed with the condition. 38 C.F.R. § 4.71a, Diagnostic Code 5270 provides ratings based on ankylosis of the ankle. Under Diagnostic Code 5270, a 20 percent rating is assigned when the ankle is ankylosed at less than 30 degrees in plantar flexion; a 30 percent rating is assigned when the ankle is ankylosed at between 30 and 40 degrees in plantar flexion, or at between 0 and 10 degrees in dorsiflexion; and a maximum 40 percent rating is assigned when the ankle is ankylosed at more than 40 degrees in plantar flexion, at more than 10 degrees in dorsiflexion, or with abduction, adduction, inversion, or eversion deformity. 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. Under 38 C.F.R. § 4.71a, Diagnostic Code 5167, a 40 percent rating is assigned when there is loss of use of the foot. Loss of use of the foot is held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of prosthesis. 38 C.F.R. §§ 3.350 (a) (2), 4.63. In August 2006, VA treatment records reflect normal range of motion of the ankle. In March 2007, the Veteran underwent a VA examination to, in part, assess the severity of his left ankle disability. Range of motion was noted to be 5 degrees dorsiflexion and 30 degrees plantar flexion. The Veteran continued to report pain and fatigability associated with his left ankle. By way of example, in October 2015, the Veteran reported difficulty with balance. The clinician noted that his neuropathy, unrelated to his left ankle disability, likely caused poor balance when combined with his left ankle pain and tenderness. In November 2015, VA treatment records reflect that the joint mobility in his left ankle was not limited. In January 2016, VA treatment records note difficulty with rapid movements in the left ankle. In March 2016, the Veteran underwent another VA examination to assess the severity of his left ankle disability. He was diagnosed with osteoarthritis of the left ankle. He reported constant pain, which worsened with walking more than one block at a time. The Veteran stated that he could not wear high-top shoes or boots as they compressed his ankle and caused pain. He also reported flare ups if he spent too might time walking or bearing weight, which caused more severe pain lasting one to two days. Dorsiflexion was limited to 8 degrees, and plantar flexion was limited to 15 degrees. Range of motion caused pain on examination, and there was evidence of pain associated with weight-bearing. Repetitive use did not additionally limit range of motion. The examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Any additional loss of range of motion due to repetitive use over time could not be estimated. The examination was also neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. Pain, weakness, fatigability and incoordination did not significantly limit functional ability with a flare up. There was no ankylosis found on examination. In October 2016, VA treatment records reflect good range of motion in the Veteran’s ankles with no pain elicited on examination. In March 2017, VA treatment records note ambulation limited to approximately one block due to left ankle pain. Joint mobility was not limited. In February 2018, VA treatment records reflect that the Veteran’s extremities exhibited good range of motion with no pain. In September 2016, the Veteran underwent another VA examination to assess the severity of his left ankle disability. The Veteran was diagnosed with degenerative joint disease of the left ankle and tendonitis unrelated to his service-connected disabilities. He reported pain with direct pressure to the ankle, and prolonged weight-bearing. Flare ups, as reported, included increased irritation with high socks and shoes. The Veteran reported that he walks with a limp due to his right leg and that negatively affected his left ankle. Left ankle dorsiflexion was limited to 5 degrees, and plantar flexion to 35 on active range of motion. Passive range of motion revealed dorsiflexion to 10 degrees and plantar flexion to 40 degrees. Repetitive use did not additionally limit range of motion. The examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain and fatigue caused impairments to functional ability with repeated use over time. Ranges of motion, in that situation, were estimated to be the same as his measured active ranges of motion. The examination was also medically consistent with the Veteran’s statements describing functional loss during flare up. Pain and fatigue caused impairment to functional ability during flare ups. Ranges of motion were estimated to be the same as the Veteran’s measured active range of motion. Muscle strength normal and no ankylosis was found on examination. There was no instability, and the Veteran reported using a cane occasionally. The examiner assessed functional impact as an inability to perform strenuous physical labor, and difficulty walking on rough or uneven terrain. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran’s left ankle disability is not entitled to an evaluation in excess of 30 percent. At no point was the Veteran diagnosed with ankylosis of the left ankle. He was, however, rated under the Diagnostic Code for ankylosis. It is unclear why this Diagnostic Code was applied, but the Board will not disturb the currently assigned evaluation. The October 2007 rating decision indicates that the Veteran’s limitation of motion demonstrates entitlement to an evaluation of 30 percent. However, Diagnostic Code 5270 is only for application in cases of ankylosis. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 94 31st ed., 2007). In order to afford a higher evaluation, the Veteran would have to demonstrate ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. As reflected throughout the Veteran’s three VA examinations and VA treatment records, his left ankle disability does not meet or approximate these criteria. The Veteran’s left ankle is not frozen in plantar or dorsiflexion to any degree as he maintains some limited range of motion in the joint. Additionally, no abduction, adduction, inversion or eversion deformities were noted in the medical evidence of record. Furthermore, an evaluation under Diagnostic Code 5271 for limitation of motion would not warrant an evaluation in excess of 30 percent. The maximum schedular evaluation for limitation of motion is 20 percent, which the Veteran presently exceeds with his current evaluation. Even with a finding of marked limitation of motion, the Veteran would not be entitled to an increased evaluation under Diagnostic Code 5271. The Board has considered whether the Veteran is entitled to a higher rating on the basis of functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45 and 4.59. See DeLuca, 8 Vet. App. at 202. During the entire appeal period, the Veteran reported that his service-connected left ankle disability caused pain and tenderness that prevented him from walking more than one block at a time. He was also unable to wear high shoes, socks or braces that would press against his scar. The Veteran, however, retained some range of motion throughout the period on appeal. Additionally, the Veteran himself has not alleged that his ankle is immobile at any point due to his disability. The Board finds that the Veteran’s pain and any functional loss do not warrant a higher rating at any time during the rating period. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 202. The Board has also considered other Diagnostic Codes to determine whether the Veteran might be entitled to a higher rating at any time during the rating period in relation to his service-connected left ankle disability. Diagnostic Codes 5272, 5273, and 5274 pertain to disabilities of the ankle, but are not for application in the present case because the record is absent for evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy, as required under those Diagnostic Codes. In addition, the record does not show that the Veteran’s functioning of the left lower extremity was so diminished that amputation with prosthesis would have equally served him at any time during the period on appeal. Therefore, the provisions under Diagnostic Code 5165 are not for application. In light of the above, the Board finds that a preponderance of the evidence is against assignment of a rating in excess of 30 percent for the Veteran’s service-connected left ankle disability. Therefore, the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel