Citation Nr: 19167331 Decision Date: 08/29/19 Archive Date: 08/29/19 DOCKET NO. 13-09 608A DATE: August 29, 2019 ORDER An initial evaluation in excess of 10 percent for degenerative joint disease of the right ankle, for the purposes of substitution, is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s right ankle disorder is manifested by moderate limitation of motion. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for degenerative joint disease of the right ankle, for the purposes of substitution, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to July 1972. He died in September 2018. The appellant is his daughter. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2017, the Veteran testified during a Board hearing in St. Petersburg, Florida, before the undersigned Veterans Law Judge. A transcript is included in the claims file. The Board denied the Veteran’s claim in a September 2017 decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial in an August 2018 order granting a joint motion for partial remand (JMPR). After the Veteran’s death, the Board dismissed the appeal for lack of jurisdiction in a September 2018 decision. In February 2019, the appellant filed a request for substitution. In an April 2019 order otherwise addressing a mandate under the Equal Access to Justice Act, the Court granted the appellant’s motion for substitution. The issue is therefore again before the Board to be decided on the merits. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the right ankle, for the purposes of substitution The JMPR instructs that remand is necessary to provide a medical opinion “in which the examiner addresses functional loss during flare-ups, either through observation at an examination or by eliciting relevant information about [the Veteran’s] functional loss during a flare-up or providing an explanation as to why that evidence could not be obtained.” Unfortunately, the Veteran died shortly after the JMPR was issued. The Board finds that compliance with these instructions is futile, as an examiner can no longer physically examine the Veteran nor elicit relevant information from him. As such, the Board must decide the appeal based on the evidence available, including the September 2010 VA examination report which was issued with insufficient information to provide an adequate opinion regarding flare-ups. The appellant asserts that the Veteran’s right ankle disability rating should have been higher than 10 percent. At his June 2017 Board hearing, when asked why his right ankle should be given a higher disability rating the Veteran testified: “Well, I guess that’s what they say, if you have a problem just come back here and talk, and tell them, and then I just leave it in your hands to do the right thing for me.” The Board finds that the evidence of record does not support an increase in the Veteran’s right ankle disability rating. Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Normal range of motion of the ankle is considered to be attained if dorsiflexion is possible to 20 degrees and plantar flexion is possible to 45 degrees. See 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, Diagnostic Code 5271, a 10 percent rating is assigned for limitation of ankle motion that is moderate. A maximum 20 percent rating is assignable for limitation of ankle motion that is marked. The Board notes that the term “marked” is not defined under VA regulations. That term also does not appear to have a generally accepted medical definition. Therefore, the Board finds that it is appropriate to turn to a general-purpose dictionary definition of these terms. The adjectives “marked” and its related form “markedly” are defined as strikingly noticeable or conspicuous. Synonyms include striking, outstanding, obvious, and prominent. See “marked,” The American Heritage Dictionary of Idioms (http://dictionary.reference.com/browse/marked.). lternative and additional Diagnostic Codes for the ankle are available under 38 C.F.R. § 4.71a, as follows: Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. As the Veteran is in receipt of a 10 percent rating based on limitation of motion, higher ratings based on these criteria are not available for the Veteran. Under 38 C.F.R. § 4.71a, Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees is rated at 20 percent; ankylosis in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees is rated at 30 percent; and ankylosis in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity is rated at 40 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5272, ankylosis of the subastragalar or tarsal joint is rated at 10 percent for ankylosis in good weight-bearing position and at 20 percent for ankylosis in poor weight-bearing position. Under 38 C.F.R. § 4.71a, Diagnostic Code 5273, malunion of the os calcis or astragalus is rated at 10 percent for moderate deformity and 20 percent for marked deformity. Under 38 C.F.R. § 4.71a, Diagnostic Code 5274, astragalectomy is rated at 20 percent. In a September 2010 VA examination of the joints (including the right ankle) an examiner reviewed the medical evidence in the claims file, recounted the Veteran’s history, and recited his complaints. The Veteran was diagnosed with degenerative joint disease of the right ankle. The examiner reported that the Veteran was able to walk 1/4 of a mile. There was no ankylosis. There was no evidence of abnormal weight bearing. There was no tendon abnormality. There was no objective pain with active motion in the right ankle. There was no objective pain following three repetitions of range of motion in the right ankle. He had weekly flare-ups described as severe. Precipitating factors causing flare-up were sudden weather changes, especially cold weather, prolonged walking, standing or sudden movements. Flare-ups were relieved with rest, analgesics and ice/heat packs. There were no episodes of dislocation, subluxation, or locking. The Veteran’s gait was antalgic, and the right ankle manifested tenderness. Dorsiflexion was measured from 0 to 10 degrees with no objective indication of pain associated with motion. Plantar flexion was measured from 0 to 40 degrees with no objective indication of pain associated with motion. X-rays showed mild degenerative changes of the ankle without acute type finding. VAMC medical records from October 2011 showed a diagnosis of arthralgia in the Veteran’s right ankle. The pain was controlled with tramadol. The Board finds that the preponderance of the evidence is against the assignment of a higher rating for the service-connected right ankle disability. The Board first addresses the current rating under Diagnostic Code 5271. While the medical evidence reveals right ankle tenderness with dorsiflexion that is about half of normal, while flexion was just 5 degrees short of normal. These symptoms are not more than moderately limited. In order to meet the threshold for marked limitation of motion required for the assignment of the maximum 20 percent rating, it would be expected to have more significant limitation of motion, particularly with flexion. As the Veteran has ankle arthritis, some level of pain is conceded, and there was objective evidence of tenderness, but these symptoms are encompassed by the 10 percent rating already assigned. While the record shows that the Veteran has degenerative joint disease and reports of flare-ups, there was no objective evidence of painful motion related to the right ankle; and the minimum compensable rating of 10 percent under Diagnostic Code 5271 has already been assigned. Evaluations in excess of the 10 percent rating assigned must be based on demonstrated additional functional impairment. See 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). In this regard, the Board acknowledges the Veteran’s complaints of pain with flare-up. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40. Even with the report of pain from flare-ups, there is no indication of additional limitation of motion as a result, and there is no evidence weakened movement, incoordination, or pain on movement. 38 C.F.R. § 4.45. Thus, the symptomatology described by the Veteran and in the VA medical records do not itself support any higher rating. The Board has considered the application of alternative diagnostic codes that afford ratings in excess of 10 percent. However, as the evidence demonstrates that the Veteran does not have ankylosis, os calcis or astragalus with marked deformity, or residuals of astragalectomy, Diagnostic Codes 5270, 5273, 5274 are not for application here. The Veteran did not purport that there are any medical records or any medical symptoms establishing why the disability rating for his right ankle should be increased. At his hearing when asked why his right ankle disability rating should be increased he testified: “if you have a problem just come back here and talk, and tell them, and then I just leave it in your hands to do the right thing for me.” As already described herein, the Veteran was provided with VA examinations and care related to his right ankle. Here, there is no competent or credible evidence lay or medical evidence upon which the Board can rely that would permit an increase in the Veteran’s right ankle disability rating. Clyburn v. West, 12 Vet. App. 296 (1999). For all these reasons, a higher disability rating is not warranted under the applicable laws and regulations. For these reasons, the Board finds that the preponderance of the evidence is against an increase in the Veteran’s right ankle disability rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.