Citation Nr: 19165392 Decision Date: 08/22/19 Archive Date: 08/22/19 DOCKET NO. 18-33 947 DATE: August 22, 2019 ORDER Entitlement to an increased rating higher than 10 percent for the service-connected right ankle disability is denied. FINDING OF FACT The Veteran’s right ankle disability is manifested by, at worst, dorsiflexion to 10 degrees and plantar flexion to 30 degrees, and there is no evidence of ankylosis. CONCLUSION OF LAW The criteria for an increased rating higher than 10 percent for the service-connected right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION REFERRED The Veteran filed a claim for service connection for right ear hearing loss in June 2018. The RO subsequently notified the Veteran that this claim was part of a pending appeal for an increased rating for the left ear hearing loss. That appeal was not pursued in the Veteran’s June 2018 Form 9 and it is otherwise unrelated to the Veteran’s service connection claim. Accordingly, the Veteran’s claim for service connection for right ear hearing loss is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. 1. Entitlement to an increased rating higher than 10 percent for the service-connected right ankle disability. The Veteran seeks a higher rating for his right ankle ability because his right ankle causes extreme pain and difficulty and he has a below-the-knee amputation on his left side. The Board notes that the left extremity condition is not service-connected. He was afforded a VA examination in January 2016, at which time he reported experiencing chronic pain and swelling, especially with prolonged weight-bearing. He also denied flare-ups. While an examination was completed, the Board finds that the examiner’s conclusions are not reliable because the report does not comply with governing case law and it is internally inconsistent. Specifically, the examiner noted there was no evidence of ankylosis in one section of the report but wrote that there was less movement than normal due to ankylosis in another section. Additionally, the examiner was unable to opine without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time, but he did not provide an adequate reason for this opinion in compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board therefore did not rely on this examination report in its analysis. The Veteran was afforded a second VA examination in May 2018, at which time he reported constant stiffness, occasional swelling, and flare-ups. Range of motion testing showed plantar flexion to 30 degrees with pain, dorsiflexion to 10 degrees with pain, and no additional limitation of motion after repetitive use. He concluded that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time or with flare-ups. Muscle strength was normal and there was no evidence of muscle atrophy, ankylosis, or joint instability. The examiner was unable to test the left ankle due to his below-the-knee amputation. VA medical records are associated with the claims file and do not show much relevant treatment for the right ankle disability. In June 2016, the Veteran reported chronic foot/ankle pain that averaged as a ‘6’ in severity over the past week and a ‘4’ in terms of interference in activities. Other records documenting mobility issues were related to his nonservice-connected conditions. In consideration of the evidence, the Board finds that a 20 percent rating is not warranted. While the rating schedule does not define “moderate” or “marked” limited motion, guidance from VBA’s M21-1 Adjudication Procedures Manual states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. Marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See id. The M21-1 is not binding on the Board and, to rely on the M21-1, the Board must conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. See Overton v. Wilkie, 30 Vet. App. 257 (2018). The Board finds that the M21-1 may be relied upon as a factor based on VA’s proposed revisions to Diagnostic Code 5271 made in February 2003 and August 2017. See 68 Fed. Reg. 6998 (Feb. 11, 2003); 82 Fed. Reg. 35719 (Aug. 1, 2017). In February 2003, VA hired an outside consultant, who convened a panel of non-VA specialists, to review the portion of the rating schedule dealing with the musculoskeletal system to formulate recommendations. VA proposed to adopt many of the recommendations, including defining “moderate” and “marked” similarly to the current M21-1 guidelines to ensure consistent evaluations. See 68 Fed. Reg. at 7018. In August 2017, VA proposed to redefine “moderate” and “marked” exactly as listed in the M21-1 and the proposal noted that “as 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.” 82 Fed. Reg. at 35723. The Board finds that the bases underlying VA’s proposed rules, which were created with non-VA specialists, are persuasive reasons to partly rely on M21-1 in rating ankle disabilities under Diagnostic Code 5271. As the evidence shows dorsiflexion to 10 degrees and plantar flexion to 30 degrees, with pain, the Veteran’s range of motion is moderate pursuant to the M21-1. The Board also considered the Veteran’s reports of pain, stiffness, and swelling related to his service-connected right ankle disability. The Board finds, however, that these symptoms do not justify the higher rating in the context of his entire disability picture. The Board thus finds that the evidence does not support that his right ankle disability causes marked limitation of motion; instead, the evidence supports moderately limited motion at worst. Accordingly, the claim for an increased rating for the right ankle is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lavan, Associate 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.