Citation Nr: 19128038 Decision Date: 04/10/19 Archive Date: 04/10/19 DOCKET NO. 17-64 624 DATE: April 10, 2019 ORDER A disability rating higher than 10 percent for right ankle disability, to include sprain with ligament tears, is denied. FINDING OF FACT For the entire appeal period, the Veteran’s right ankle disability was manifested as moderate limitation of motion. CONCLUSION OF LAW The criteria for a right ankle disability rating higher than 10 percent have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5271 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from December 1991 to December 1995 and March 2002 to March 2003. The Board notes that in October 2018 the RO granted service connection for asthma. In March 2019, the Veteran appealed the rating granted. However, as the RO appears to still be working on this matter, it is not before the Board. 1. A disability rating higher than 10 percent for right ankle disability, to include right ankle sprain with ligament tears. The Veteran contends that his right ankle disability has worsened and a disability rating higher than 10 percent is warranted. As noted in the January 2009 appellate brief, the Veteran has claimed that his ankle has become arthritic causing reduced motion. The Veteran essentially contends that as he has developed gout in his right ankle, his service-connected disability has worsened, and a higher rating is warranted. The Board finds, however, that the Veteran’s gout is not part of his service-connected right ankle disability. In August 2017 and October 2017 VA examinations, VA examiners found that that the Veteran’s gout was not caused by the service-connected right ankle disability. Furthermore, in a November 2017 rating decision, the RO denied service connection for gout. In his December 2017 VA Form 9, filed in conjunction with the increased rating claim for the right ankle the Veteran indicated that he disagreed with the denial of gout. However, the record does not show that he completed the Notice of Disagreement form. Because the statement was not submitted on forms prescribed by VA it is not deemed a notice of disagreement. 38 C.F.R. § 20.201(a) (2015) (requiring that notices of disagreement be submitted on forms prescribed by VA when VA sends the form to a claimant); see Veterans Justice Group, LLC v. Secretary of Veterans Affairs, 818 F.3d 1336 (Fed. Cir. 2016) (upholding the validity of 38 C.F.R. § 20.201(a)). As such, a notice of disagreement has not been filed with the denial of service connection for gout and that decision is final. As service connection for gout has been denied, it is not part of the current claim for an increased rating for the right ankle disability. Although VA medical records document occasional treatment for gouty arthritis, the only medical evidence for rating purposes is the August 2017 VA examination. The October 2017 VA examination was for the claim for service connection for gout and did not include any limitation of motion findings, other than finding that the Veteran did not have limitation of joint movement attributable to the gouty arthritis condition. The August 2017 VA examiner found abnormal right ankle motion with dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 40 degrees. The examiner found that the Veteran’s range of motion was outside of normal range, but normal for the Veteran, due to his effort and his history of gout unrelated to the service-connected right ankle disability. There was also no evidence of pain on passive range of motion testing or weight bearing and non-weight bearing. The Veteran’s ankle disability is currently rated under Diagnostic Code 5271, limited motion of the ankle. A 10 percent rating is warranted with moderate limited motion and a 20 percent rating is warranted under marked limited motion. Standard range of motion of an ankle is to 20 degrees of dorsiflexion and to 45 degrees of plantar flexion. 38 C.F.R. § 4.71 Plate II. Although the schedule of ratings does not provide information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in the VA Adjudication Procedures Manual (M21-1). The M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See M21-1, III.iv.4.A.3.k. The M21-1 is not binding on the Board. However, the Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257 (2018). In finding that the Veteran’s limitation of ankle motion is not more accurately defined as “marked” (for a 20 percent disability rating), the Board considers VA’s proposed change to Diagnostic Code 5271, which was published in February 2003. See 68 FR 6998. In the proposed regulation, VA noted that it hired an outside consultant to recommend changes “to ensure that the schedule uses current medical terminology and unambiguous criteria, and that it reflects medical advances that have occurred since the last review. The consultant convened a panel of non-VA specialists to review the portion of the rating schedule dealing with the musculoskeletal system in order to formulate recommendations.” Id. Regarding Diagnostic Code 5271, VA noted that the terms “marked” and “moderate” are subjective and proposed to substitute more objective criteria that was recommended by the consultants. Specifically, it was proposed to assign a 20 percent rating if there was less than 5 degrees passive dorsiflexion or less than 10 degrees passive plantar flexion, and a 10 percent rating if there was less than 15 degrees of passive dorsiflexion or less than 30 degrees passive plantar flexion. Id. at 7018. It was noted that this change would promote consistent evaluations. Id. The Board finds the explanation of the proposed regulation to be persuasive. Significantly, VA consulted with specialist medical professionals who recommended objective criteria based upon current medical knowledge with the specific intent of ensuring more consistent outcomes for veterans. Then, in August 2017, VA again proposed to change Diagnostic Code 5271. See 82 FR 35719. VA noted that the criteria set forth in Diagnostic Code 5271 are “subjective and the terminology is vague, resulting in inconsistent evaluations.” VA proposed this time to define “marked” as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion, and “moderate” as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. Id. at 35723. VA noted that, “[a]s VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel.” Id. The Board finds the explanation of the proposed regulation to be persuasive because again, VA is expressing its intent to codify a policy that was employed to ensure more uniformity among its rating personnel. Additionally, the proposed criteria were similar to those proposed in 2003, with the exception that the word “passive” was not included. In Dorland’s Illustrated Medical Dictionary, 1592 (32nd ed. 2012), range of motion redirects the reader to “exercise.” Passive exercise “is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient’s own body.” Id., at 658. Active exercise is “motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part.” Id. It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran’s joint farther than he would be able to move it on his own. Therefore, the omission of the word “passive” from the 2017 proposed regulation is likely more favorable to veterans, which causes the Board to be further inclined to employ its use. The Board does not consider the M21-1 provision to be binding, but finds the reasoning employed in the 2003 and 2017 proposed rules to be highly persuasive in support of a finding that the ranges of motion listed in the M21-1 are appropriate, given that they are nearly identical to the 2003 proposal that was made in consultation with specialist medical professionals. The Board also considers whether an increased rating is warranted under other Diagnostic Codes pertaining to the ankle. Diagnostic Code 5270 contemplates ankylosis of the ankle and Diagnostic Code 5272 ankylosis of the subastragalar or tarsal joint. The Veteran retains the ability to move his ankle, therefore he does not have ankylosis. Indeed, the August 2017 VA examiner specifically found no ankylosis. As such, Diagnostic Code 5270 and Diagnostic Code 5272 are not applicable to the current claim. Additionally, the August 2017 VA examiner found no malunion of the os calcis or astragalus or astragalectomy, such that Diagnostic Codes 5273 and 5274 respectively are not applicable to the current claim. The Veteran’s ankle disability is based upon limitation of motion. Consequently, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors: less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. §§ 4.40, 4.45 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board acknowledges the Veteran had abnormal limited range of motion, but the evidence does not show the Veteran had marked limitation of motion. In support of this finding, the Board notes that the Veteran could perform repetitive motion with no additional loss in range of motion and he did not experience flare ups. His strength was normal, showing that he did not have weakness in his ankle. He retained half of his dorsiflexion and most of his plantar flexion. These factors weigh against a finding that the severity of the Veteran’s limitation of ankle motion is more accurately described as “marked.” Additionally, for the reasons discussed above, the Board finds the objective criteria proposed by VA as a revision to Diagnostic Code 5271 to be highly persuasive. The Veteran’s dorsiflexion was less than 15 degrees, but greater than 5 degrees. His plantar flexion was 30 degrees, which is above the cutoff for what is described as “moderate” in the proposed regulation and later in the M21-1, and again in a second proposed regulation. As such, even when the Board considers the full limitation of the ankle found by the VA examiner, whether or not such limitation was caused by or partially caused by non-service connected gout (the August 2017 VA examiner found gout was the cause of the limitation, but the October 2017 VA examiner found gout did not limit joint movement), a disability rating higher than 10 percent based on limitation of motion of the right ankle is not warranted. The Board acknowledges the Veteran had limited, painful motion, but evaluations more than the minimum compensable rating must be based on demonstrated functional impairment. Burton v. Shinseki, 25 Vet. App. 1 (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. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); 38 C.F.R. § 4.40 (2018). Therefore, even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran’s functional loss from his right ankle disability does not equate to more than the disability picture contemplated by the current 10 percent disability rating. Neither the Veteran nor his/her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. The Veteran’s claim for a disability rating higher than 10 percent for the service-connected right ankle disability is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio