Citation Nr: 18155920 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-49 053 DATE: December 6, 2018 ORDER Entitlement to an evaluation in excess of 10 percent for syndesmotic ligament sprain with history of surgery and with posttraumatic degenerative joint disease(DJD), right ankle (previously claimed as status-post pronation/external rotation injury) (hereinafter, right ankle disability) is denied. Entitlement to service connection for a lower back pain disability, claimed as secondary to service-connected right ankle disability is denied. Entitlement to service connection for a left ankle disability, claimed as secondary to service-connected right ankle disability is denied. Entitlement to service connection for a left hip disability, claimed as secondary to service-connected right ankle disability is denied. Entitlement to service connection for a right hip disability, claimed as secondary to service-connected right ankle disability is denied. Entitlement to service connection for a right knee disability, claimed as secondary to service-connected right ankle disability is denied. FINDINGS OF FACT 1. The Veteran has no worse than a moderate limitation of motion in the right ankle due to pain. 2. Currently diagnosed disabilities of the low back, left ankle, left hip, right hip, and right knee are not etiologically related to service or the service-connected right ankle disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 10 percent for right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2018). 2. The criteria for service connection of a low back disability are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.59 (2018) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Marine Corps from December 1992 to February 1998. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Increase Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 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. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” rating. Fenderson, 12 Vet. App. at 126. The Board finds, in this case, that the Veteran’s service-connected disability has not changed in severity over the course of the appeal period to warrant a staged rating. In rendering a decision on appeal, the Board must also 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 claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran is currently in receipt of a 10 percent rating for the ankle under Diagnostic Code 5271. The RO has made clear that such is granted under 38 C.F.R. § 4.59, to fulfill VA policy of recognizing actually painful joints as entitled to at least the minimum compensable rating. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). To warrant an increased, 20 percent rating under Code 5271, the evidence must show marked limitation of motion of the ankle. Ankylosis in certain positions or marked deformity in malunion of the bones of the joint can also warrant a 20 percent rating. 38 C.F.R. § 4.71a. Normal ankle dorsiflexion is from 0 to 20 degrees, and normal ankle plantar flexion is from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. In September 2014, the Veteran was afforded a VA examination. Right ankle osteoarthritis was diagnosed by x-ray. Because of his ankle pain he had to take frequent breaks to rest. He had flares of pain in his ankle and had to shift his weight to the other ankle. Range of motion testing was normal in dorsiflexion and plantar flexion, but it was displaced in the planter direction in a normal variation. The examiner noted that inversion was to 20 degrees and eversion was to 10 degrees, which was considered abnormal for the Veteran. All motion showed some endpoint pain. There was evidence of pain with weight bearing. The Veteran was able to complete repetitive testing without additional loss of motion. He did not have any functional loss or functional impairment to the ankle. The Veteran did not have evidence of localized tenderness or pain on palpation of the right ankle. The joints were stable and there was no ankylosis. In his July 2015 notice of disagreement, the Veteran indicated that he had pain and limited movement in his right ankle. He wrote that he had a limp due to the pain in his right ankle. He explained that his disability changed the way he walked, ran, jumped, stood, climbed, and sat. The Board first notes that the Veteran retains nearly full range of motion in the right ankle in all planes; there is no ankylosis. There is not, and never has been evidence or allegation of fracture or malunion of the bones of the joint. The sole basis for increased rating, then, is a potential finding of marked limitation of motion under Code 5271. Unfortunately, the disability picture presented does not approach such. The Veteran’s motion in dorsiflexion and plantar flexion is normal, with minimal to no functional impact from pain. His impairment in inversion and eversion is impaired, but such is relatively minor against the overall function described by the Veteran and the VA examiner. No increased evaluation is warranted; marked impairment is not shown. Lower Back Pain, Left Ankle, Left Hip, Right Hip, Right Knee The Veteran contends that his lower back pain, left ankle, left hip, right hip, and right knee disabilities are the result of stresses caused by his service-connected right ankle disability. Specifically, he reports his shifting of weight and limp resulted in changed body mechanics that have resulted in additional joint problems, and secondary service connection is warranted. He does not allege, and the evidence of record does not show, that these conditions arose in service or within any applicable presumptive period. Additionally, the September 2014 VA examiner reviewed the claims file in its entirety, and opined that no basis exists for an award of direct or presumotive service connection. The claimed conditions were not treated in service or for several years following. He has also opined on the Veteran’s secondary service connection allegation. The examiner recognized that even where no underlying physical condition was present, the reports of pain with associated functional impairment (as in the left ankle and low back) could constitute service-connectable conditions. However, he rejected the theory put forth by the Veteran with regard to each claimed disability. He reasoned that medical evidence showed that pain in one joint does not typically cause clinically significant damage in other joints “unless there is a lurching gait, or a leg length discrepancy” greater than five centimeters. Neither was present with regard to the Veteran. His weight shifting and slight limp from the right ankle were not severe enough to have caused or contributed to the development of the other claims conditions. Further, with regard to the back, an intercurrent work injury occurred in 2006 to account for many of the current complaints. The preponderance of the evidence is against the Veteran’s claims. There is no doubt to be resolved, and they must be denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel