Citation Nr: 19169561 Decision Date: 09/10/19 Archive Date: 09/09/19 DOCKET NO. 14-33 750 DATE: September 10, 2019 ORDER Entitlement to a disability rating in excess of 10 percent for degenerative joint disease (DJD) of the left ankle, prior to June 12, 2019, and in excess of 20 percent thereafter is denied. FINDING OF FACT 1. Prior to June 12, 2019, the Veteran’s left ankle disability is manifested by dorsiflexion of 10 degrees and plantar flexion 45 degrees, at its worst, with pain noted and causing some functional loss. 2. As of June 12, 2019, The Veteran’s left ankle disability is assigned a 20 percent disability rating, which is the maximum rating authorized under Diagnostic Code (DC) 5271. CONCLUSION OF LAW 1. Prior to June 12, 2019, the criteria for a disability rating in excess of 10 percent for a left ankle disability were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5271 (2018). 2. As of June 12, 2019, the criteria for a disability rating in excess of 20 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, DC 5003-5271, 4.87 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to November 1976. This matter was previously before the Board in April 2018 but was remanded for further development. Specifically, the Veteran’s claim was returned to the Agency of Original jurisdiction with instruction that the Veteran be afforded new VA ankle conditions examination. The required examination was completed in April 2019 and it described the Veteran’s left ankle disability in sufficient detail to allow the Board to make a well informed decision. Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to a rating in excess of 10 percent for left ankle, degenerative joint disease prior to June 12, 2019 The Veteran was assigned an initial 10 percent disability rating, effective January 24, 2012, in a July 2019 rating decision. The Veteran’s left ankle DJD was rated in accordance with Diagnostic Code 5003-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. DC 5003 refers generally to degenerative arthritis, whereas Diagnostic Code 5271 provides ratings based on limitation of motion of the ankle. Diagnostic Code 5271 provides a 10 percent rating for moderate limited ankle motion and a 20 percent rating for marked limited ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal dorsiflexion is 20 degrees. Normal plantar flexion is 45 degrees. 38 C.F.R. § 4.71, Plate II. When an evaluation of a disability is based upon limitation of motion, 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 as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2016); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The minimum compensable rating has been assigned in this case. The words “moderate” and “marked” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “marked” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. However, while the schedule of ratings does not provide any information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in VBA’s M21-1 Adjudication Procedures Manual. Specifically, 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 VBA Manual M21-1, III.iv.4.A.3.k. The M21-1 is not binding on the Board. DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”). 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, 259 (2018). In finding that the Veteran’s limitation of ankle motion is not more accurately defined as “marked,” the Board considers VA’s proposed change to Diagnostic Code 5271, which was published in the Federal Register 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 more 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. In March 2012, the Veteran completed a VA ankle conditions examination. The examination noted the Veteran’s left ankle range of motion was normal with dorsiflexion 20 degrees and plantar flexion 45 degrees or greater. There was no objective pain on motion. The Veteran’s muscle strength was normal. There was no joint instability or ankylosis of the ankle. The Veteran’s left ankle was not additionally limited by pain, fatigue weakness lack of endurance or coordination after repetitive use. Finally, the Veteran’s left ankle showed no signs of shin splints, stress fracture, talectomy, or malunion calcaneous or talus. The Veteran did not use an assistive device for locomotion. In July 2014, the Veteran underwent a separate VA examination on his left ankle. He reported aching, pain, swelling, and stiffness. His pain increased with prolonged standing, walking, and using stairs. He stated that he could no longer do impact sports. During the examination, the Veteran’s range of motion measured 50 degrees for plantar flexion and 10 degrees for dorsiflexion with no objective evidence of pain on motion. Following repetitive-use testing, the Veteran measured 45 degrees for plantar flexion and 10 degrees for dorsiflexion. The Veteran reported excess fatigability in the left ankle following repetitive use. He exhibited 5/5 (normal) muscle strength testing for each. Further, the examination noted no ankylosis. The Veteran did report flare-ups of his left ankle disability. The examination did not highlight x-ray findings of mild degenerative joint disease. The Veteran used no assistive device for locomotion. Finally, the VA examiner noted the Veteran would not be better served by amputation. Based upon these prior medical examinations, the probative evidence of record does not show marked limitation of motion. The Board finds the Veteran’s left ankle disability did not more closely approximate the criteria for a 20 percent rating under Diagnostic Code 5271, even when considering pain and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45. At worst, the Veteran lost 10 degrees (half) of his dorsiflexion but retained normal plantar flexion. As described above, the Board finds the rationale in the Federal Register to be highly persuasive in support of a finding that a dorsiflexion of 10 degrees is most accurately categorized as moderate. The Board acknowledges the Veteran’s contentions that his service-connected left ankle disability warrants a disability evaluation in excess of 10 percent. The lay descriptions of the Veteran’s subjective symptoms of constant pain, particularly after prolonged standing, are competent and credible. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran’s impairment. Furthermore, the opinions and observations of the Veteran in this case cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected left ankle disability as he does not have the necessary expertise, training, or skills needed to make such a determination. With regard to other potentially applicable Diagnostic Codes, the Veteran’s limitation was not more closely described as ankylosis or less than 30 degrees of plantar flexion. As he is able to move his ankle, by definition he does not have ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Additionally, the Veteran’s disability may not be rated by analogy to Diagnostic Codes 5272, 5273, and 5274 because he did not have ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or an astragalectomy. The Board finds that the most probative evidence of record does not support a disability evaluation in excess of 10 percent for the Veteran’s left ankle disability, prior to June 12, 2019. See Fenderson, 12 Vet. App. 114. The preponderance of the evidence is against his claim for an increased disability evaluation. 38 C.F.R. § 4.3. 2. Entitlement to a rating in excess of 20 percent for left ankle, degenerative joint disease, as of June 12, 2019 The Veteran was assigned a 20 percent disability rating for DJD of the left ankle, effective June 12, 2019, in a July 2019 rating decision. In April 2019, the Veteran underwent a separate VA examination on his left ankle. During the examination, the Veteran’s range of motion measured 35 degrees for plantar flexion and 10 degrees for dorsiflexion with no objective evidence of pain on motion. There was no additional range of motion limitation following repetitive-use testing. The Veteran reported a lack of endurance in the left ankle following repetitive use. He exhibited 5/5 (normal) muscle strength testing for each. Further, the examination noted no ankylosis. The Veteran did report flare-ups of his left ankle disability. The examination did not highlight x-ray findings of mild degenerative joint disease. The Veteran used no assistive device for locomotion. Finally, the VA examiner noted the Veteran would not be better served by amputation. As the maximum schedular rating for the Veteran’s left ankle disability under Diagnostic Code 5271 has already been assigned, a higher schedular rating is not available, and the Veteran’s claim for a disability rating in excess of 20 percent for his left ankle disability must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Additionally, the Board considered whether a higher rating may be available under other diagnostic codes available to rate the Veteran’s left ankle disability. However, the evidence does not indicate that the Veteran has ankylosis of the ankles (DC 5270) or the subastragalar or tarsal joint (DC 5272), malunion of the os calcis or astragalus (DC 5273), or astragalectomy (DC 5274). The Board acknowledges that the Veteran’s service-connected bilateral ankle disabilities causes pain. The presence of pain, as described by the Veteran, is certainly a component of his disability and is contemplated in the rating criteria. The Board finds that the 20 percent ratings assigned adequately portray any functional impairment, pain, fatigue, weakness, and any flare-ups that the Veteran experiences as a consequence of his left ankle disability. As such, the Board finds that the weight of the evidence is against a disability rating in excess of 20 percent for the Veteran’s left ankle disability for the entirety of the appeal period. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.