Citation Nr: 19173290 Decision Date: 09/19/19 Archive Date: 09/19/19 DOCKET NO. 14-21 121 DATE: September 19, 2019 ORDER Entitlement to a disability rating in excess of 10 percent for a left ankle disability is denied. FINDING OF FACT The Veteran’s left ankle disability manifests, at worst, with plantar flexion to 40 degrees, dorsiflexion to 15 degrees, and no ankylosis. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for residuals of a left ankle disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1987 up until April 2011. A Board videoconference was held in May 2017 before the undersigned Veterans Law Judge (VLJ). This matter was previously before the Board in April 2019 but was remanded for further development. Specifically, the Veteran’s claim was remanded to the Agency of Original Jurisdiction (AOJ) so that the Veteran be afforded a VA ankle conditions examination. The Veteran completed the required examination in June 2019. The examination report described the Veteran’s left ankle symptoms in a manner that a well-informed determination could be made. The Remand noted that the examiner should consider that a January 2018 VA examination report noted “lateral ankle laxity on range of motion,” and directed the examiner to describe the functional impact of the laxity. The VA examiner discussed the January 2018 report. The June 2019 examiner changed the Veteran’s diagnosis to “lateral collateral ligament strain.” The examiner described the functional impairment due to this condition as pain, but noted that the Veteran could perform most walking, and standing regarding work. The functional limitation due to the condition would be repeated squatting, “heavy lifting” (greater than 30 pounds), working on uneven surfaces, and limitations climbing ladders. 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. 1. Entitlement to a disability rating in excess of 10 percent for a left ankle disability 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). The Veteran was granted service connection and assigned a noncompensable disability rating in a November 2018 rating decision. Subsequently, the Veteran was assigned a 10 percent disability rating, effective May 1, 2011, for a left ankle disability in a November 2018 rating decision. The Veteran’s left ankle disability is currently rated under Diagnostic Code 5271, limited motion of the ankle. 38 C.F.R. § 4.71a. Under this Diagnostic Code 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. While 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,” 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, w“[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. 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. A 20 percent evaluation is warranted for ankylosis of the ankle in less than 30 degrees of plantar flexion. A 30 percent evaluation is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. A 40 percent evaluation is warranted when there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a. The Veteran retains the ability to move his ankle, therefore he does not have ankylosis. The Veteran’s ankle disability is based upon limitation of motion. The factors set forth in 38 C.F.R. §§ 4.40, 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran received VA examinations in June 2019 and January 2018. Upon examination in June 2019, the Veteran’s range of motion was dorsiflexion to 20 degrees and plantar flexion to 45 degrees. This was normal range of motion. 38 C.F.R. § 4.71 Plate II. After repetition, dorsiflexion decreased to 15 degrees and plantar flexion decreased to 40 degrees. There was pain on weight-bearing. The examiner stated that there was no evidence of pain on passive range of motion testing of the left ankle and no evidence of pain on non-weight bearing testing. The Veteran was also examined immediately after repetitive use over time, and the examiner stated that pain caused functional loss such that dorsiflexion was 15 degrees and plantar flexion was 40 degrees. His muscle strength and joint stability were normal. The Veteran reported experiencing flare-ups, which he described as occurring during weight bearing when climbing up and down stairs, and stated that the flare ups were “always painful,” and that the ankle gave out sometimes. The examination was not conducted during a flare-up. However, the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss during a flare up. The examiner estimated that pain would limit functional ability during a flare up such that dorsiflexion would be 15 degrees and plantar flexion would be 40 degrees. The examination complied with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board will use dorsiflexion of 15 degrees and plantar flexion of 40 degrees to rate the claim. The right ankle was also tested, and it had normal range of motion with no functional impairment throughout all modes of testing. He did not have ankylosis nor use an assistive device for locomotion. The examiner noted that the Veteran’s left ankle disability manifested in a limitation in excessive walking or working on uneven surfaces. At the January 2018 examination, the Veteran’s range of motion was dorsiflexion to 20 degrees and plantar flexion to 45 degrees, which is normal. After repetition, there was no additional loss in range of motion. The Veteran did not report experiencing flare-ups. His left ankle muscle strength was 4 (out of 5), and there was some joint instability. He did not have ankylosis. He did not use an assistive device for locomotion. At present, the Board finds that a disability rating in excess of 10 percent under Diagnostic Code 5271 is not warranted. The probative evidence of record does not show the Veteran had marked limitation of motion. At worst, he lost 5 degrees each of dorsiflexion and plantar flexion. He retains 75 percent of his dorsiflexion and 89 percent of his plantar flexion. This is a significant retained functional capacity and not severe enough to be more accurately described as “marked.” Additionally, 15 degrees of dorsiflexion and 40 degrees of plantar flexion is not severe enough to meet the definition of moderate as supported by a panel of medical professionals because it is not less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. 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 20 degrees. His plantar flexion was 45 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. While the Board acknowledges the Veteran had limited, painful motion, evaluations in excess of 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. 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 10 percent rating. 38 C.F.R. § 4.71a. The Board acknowledges the Veteran’s statements that his left ankle disability is more severe than evaluated. In May 2017, he stated that he had instability and pain in his left ankle. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran’s statements nor medical evidence demonstrates that the criteria for a disability evaluation in excess of 10 percent have not been met. The Board also acknowledges that the Veteran’s VA treatment and private medical records note complaints of and treatment for residuals of left ankle sprains. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. To the extent that the Board herein denies a higher rating, the preponderance of the evidence is against such an award. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and higher ratings are not warranted. 38 U.S.C. § 5107; 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.