Citation Nr: 20004945 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 14-10 569 DATE: January 23, 2020 ORDER A 20 percent rating, and no higher, for the left ankle strain is granted. Service connection for residuals of head injury is dismissed. FINDINGS OF FACT 1. With consideration of the constant severity of the symptoms, the frequency and severity of the flare-ups, and the functional limitation due to those symptoms and during those flare-ups, the Veteran’s left ankle strain is manifested by a marked level of disability. 2. In July 2019, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran that a withdrawal was requested for the issue of whether service connection is warranted for residuals of a head injury. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, and no higher, for the left ankle strain are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271 (2019). 2. The criteria for withdrawal of the claim for service connection for residuals of head injury by the Veteran are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to July 1976. The matters presently before the Board arise from appeals of June 2003 and October 2011 rating decisions. The June 2003 rating decision denied service connection for residuals of a head injury. The Veteran filed a timely notice of disagreement (NOD) and, in April 2017, the Board remanded the matter for a statement of the case (SOC). Following the June 2017 SOC, the Veteran filed an August 2017 VA Form 9, bringing the matter within the Board’s jurisdiction. The October 2011 rating decision confirmed and continued the ratings assigned for the Veteran’s service-connected left and right ankle disabilities, and denied a separate award of service connection for degenerative joint disease for both ankles. The Board’s April 2017 remand also included these four issues. An October 2017 rating decision then recognized degenerative joint disease in both ankles as part of the service-connected disabilities. The Board then issued a decision in August 2018 denying a rating in excess of 20 percent for the right ankle strain, post-operative, with degenerative joint disease, and denying a rating in excess of 10 percent for left ankle strain with degenerative joint disease. The Veteran appealed the Board’s August 2018 decision related to the left ankle to the Court of Appeals for Veterans Claims (Court). The Veteran did not appeal the decision as to the right ankle. In July 2019, the Court signed an Order granting a Joint Motion for Partial Remand (Joint Motion), effectively vacating the Board’s August 2018 decision as to the left ankle and remanding the issue for additional consideration by the Board. Thus, this issue is again within the Board’s jurisdiction. 1. Left Ankle Rating The Veteran was initially awarded service connection for left ankle strain by way of a November 2002 rating decision. An initial 10 percent rating was assigned. He filed this claim for increase in June 2011. The most recent rating code sheet reflects that the Veteran’s left ankle strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under DC 5010 traumatic arthritis is to be rated as degenerative arthritis (DC 5003). Arthritis of a major joint is to be rated under the criteria for limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DC 5003. For the purpose of rating disabilities due to arthritis, the ankle is considered a major joint. 38 C.F.R. § 4.45. Where the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. In the absence of limitation of motion, a 10 percent rating will be assigned with x-ray evidence of involvement of 2 or more major joints. Again, the Veteran’s left ankle is already in receipt of a 10 percent rating. The question is whether a rating in excess of 10 percent is warranted under the criteria related to limitation of motion. Under DC 5271, the currently assigned 10 percent rating is warranted with moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Normal range of motion of the ankle is from 20 degrees of dorsiflexion to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. The regulations do not provide definitions for moderate or marked. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Marked” means “having a distinctive or emphasized character”. See www.merriam-webster.com/dictionary/marked. 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. 38 C.F.R. § 4.45 requires consideration 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 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; 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 criteria.”). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Turning to the case at hand, the Board finds that, reading the evidence of record in the light most favorable to the Veteran, the preponderance of the evidence supports a 20 percent rating for the Veteran’s left ankle disability. June 2011 VA clinical notes show the Veteran reporting ankle pain and weakness. He reported being issued ankle supports by the podiatry clinic and that his falls had stopped after he started wearing them. This implies that the weakness was severe enough to cause falls. At a July 2011 VA examination, the Veteran reported experiencing symptoms such as ankle weakness, his ankle “giving way” and pain. The Veteran reported wearing the brace on his left ankle and taking hydrocodone for pain. The examiner indicated that the Veteran would be limited to standing only up to one hour, and that he could work more than one quarter mile, but less than a full mile. The examiner noted that the brace was needed all the time. Physical examination revealed no instability and no tendon abnormality. Range of motion testing revealed 40 degrees plantar flexion (45 is normal) and 15 degrees dorsiflexion (20 degrees is normal), with no additional loss of motion due to pain. Range of motion testing was noted as being performed both with active and passive motion. The examination showed no pain on weight-bearing or active range of motion. This examiner did not elicit information from the Veteran related to any flare-ups of left ankle symptoms other than to indicate that there were no flare-ups of joint disease. November 2011 clinical records show the Veteran reporting with left ankle pain and weakness. Physical examination at that time revealed minimal blue discoloration to the medial ankle and tenderness with pain on motion. Ongoing reports of ankle pain and weakness are consistently shown throughout the clinical records. The Veteran indeed has required periodic treatment for his ankle disability throughout the appeal period. At the July 2016 Board hearing, the Veteran reported his ankles continuing to give out and that he used a walking stick for balance around his home approximately half the time. The Veteran reported that he had started wearing his ankle braces only part of the time under the advice of the doctor. The Veteran indicated that the doctor had suggested he could build up strength in his ankles and avoid atrophy if he used the braces less. The Veteran was afforded a VA examination related to scarring on his ankle in December 2016. At this time, he was observed as wearing high lace up boots and braces. The Veteran reported flare-up of left ankle pain that occurs one to two times every two weeks, lasting forty-five minutes to two hours. He described the pain as feeling like he had a “hot poker through the ankle.” The Veteran reported falling two to three times over a six-month period. He also reported that in some of the flare-ups he has fallen such that he experiences sprain, swelling and bruising. He also reported that during the flare-ups he cannot walk for more than 100 yards, can only stand for five to ten minutes, and cannot do physical activity such as collecting firewood or working in his shop. The Veteran was afforded another VA examination in July 2017. During this exam, the Veteran reported ankle flare-ups that included occasional swelling and constant pain. He reported functional loss as having his ankles give out and lock. He again reported falls due to his ankle symptoms. Left ankle range of motion testing revealed 45 degrees plantar flexion (45 is normal) and 20 degrees dorsiflexion (20 degrees is normal), with no pain or tenderness noted in the left ankle during the examination. The examiner noted no additional loss of motion on repetition or measured loss on repeated use. The examiner suggested that functional loss could not be described in terms of additional loss of range of motion because the Veteran “was unable to replicate the estimated limitation at the time of examination due to its episodic variability.” The examiner reported there was no objective evidence of pain when the left ankle was used in non-weight bearing mode. The examiner, however, did confirm that pain, fatigue, weakness, lack of endurance and incoordination of the left ankle would significantly limit functional ability with repeated use over a period of time. The examiner also confirmed that the Veteran’s examination was medically consistent with his statements related to his functional loss during flare-ups. The examiner concluded that the level of disability in the left ankle would cause difficulty with both walking and standing. In sum, while the specific range of motions measurements taken at two VA examinations during this longstanding appeal show normal or only slightly limited range of motion in the left ankle, the Veteran has consistently reported significant functional limitation due to the everyday symptoms related to his left ankle, with an increased level of severity during relatively common flare-ups. These symptoms include constant pain, a propensity to fall and twist or sprain the ankle, and inability to carry heavy loads, walk more than very short distances or stand for very long. The weakness in the ankle requires the use of a brace and high-laced shoes for stability. And, the most recent examiner indeed confirmed that the Veteran’s report was consistent with the level of severity found on examination. Given the constant symptoms, the frequency of flare-ups, and the functional loss due to those symptoms and those flare-ups, the Board finds that, giving the benefit of any doubt to the Veteran, his left ankle disability most closely approximates a marked level of disability. Thus, the Board finds a 20 percent rating is warranted for the Veteran’s left ankle disability under DC 5271. This rating is the maximum rating allowable. 2. Residuals of Head Injury The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204(a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204(b). In July 2019, the Veteran submitted a written statement as follows, “I am withdrawing my request for a BVA video hearing scheduled for July 29, 2019. I am withdrawing my appeal for residuals of head injury. I am aware that I would need new and relevant evidence to file this issue.” The statement was signed by the Veteran and submitted to VA. Accordingly, as there remains no allegation of error of fact or law to be determined related to this issue, the Board does not have jurisdiction to review it and the appeal as to this issue must be dismissed. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.