Citation Nr: 20009959 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-48 735 DATE: February 6, 2020 ORDER Entitlement to an initial disability rating in excess of 10 percent for a right ankle sprain is denied. FINDING OF FACT The Veteran’s right ankle sprain manifests as moderate limitation of motion. CONCLUSION OF LAW The criteria for evaluation for an initial disability rating in excess of 10 percent for a right ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10-4.14, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty service from October 1979 to July 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). 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). Entitlement to an initial disability rating in excess of 10 percent for a right ankle sprain is denied. Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA’s Schedule for Rating Disabilities (rating schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In the January 2016 rating decision, the RO granted service connection for the Veteran’s right ankle sprain effective July 29, 2015, with a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271, for limited motion of an ankle. In the August 2017 rating decision, the RO changed the effective date to July 29, 2014, and continued the 10 percent disability rating. The Veteran contends that he is entitled to a higher disability rating. Under DC 5271, a 10 percent rating is warranted for moderate limitation of motion and a 20 percent rating is warranted for marked limitation of motion. Id. For VA purposes, a normal range of ankle motion is from 45 degrees of plantar flexion to 20 degrees of dorsiflexion. 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 DC 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 DC 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 DC 5271. See 82 FR 35719. VA noted that the criteria set forth in DC 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. Thus, 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. Since Veteran’s right ankle condition is based upon limitation of motion, the Board must also consider 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, even when the background 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. § 4.71; 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.”). There are additional DCs that apply to ankle disabilities. 38 C.F.R. § 4.71a, DC 5270 pertains to ankylosis of the ankle. 38 C.F.R. § 4.71a, DC 5272 pertains to ankylosis of the subastragalar or tarsal joint. 38 C.F.R. § 4.71a, DC 5273 pertains to malunion of the os calcis or astragalus. 38 C.F.R. § 4.71a, DC 5274 pertains to an astragalectomy. In the May 2016 VA medical record, it was noted that the Veteran stated his right ankle pain and discomfort is gradually getting worse, and he stated it is aggravated by cold weather and walking. Also, it was noted that the pain level was 6, and he occasionally uses an ankle brace. The Veteran was examined by his VA podiatrist in May 2016. He reported pain in his right ankle. His strength was normal for inversion and eversion of both feet and ankles. It was noted that he had limited motion of the right ankle joint, mild swelling, and pain on palpation over the lateral malleolus of his right ankle. In the June 2016 VA medical record, it was noted that the Veteran received a magnetic resonance imaging (MRI) for his right ankle. It was noted that there was osteoarthritis of the right ankle secondary to a prior spiral fracture. In the December 2015 VA examination, the VA examiner noted the Veteran reported flare-ups of his right ankle. In particular, it was noted that the Veteran described his flare-ups as being triggered by activities or weather, lasting for 1 hour. The Veteran reported functional impairment such as difficulty walking and climbing stairs. Under range of motion (ROM), plantar flexion was to 35 degrees. Dorsiflexion was to 15 degrees. The VA examiner noted that ROM itself contributes to functional loss causing pain and limited ROM. Also, there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. After repetition, there was no change in ROM. The VA examiner noted that the Veteran was able to perform repetitive-use testing with at least three repetitions, and there was no additional loss of function or ROM after three repetitions. He was not being examined immediately after repetitive use over time, but that the examination was medically consistent with his statements describing functional loss with repetitive use over time. Also, he was not being examined during a flare-up, but that the examination was medically consistent with his statements describing functional loss during flare-ups. Therefore the ROM testing conducted at the examination is consistent with what it would be during a flare-up. Additional contributing factors of the Veteran’s right ankle sprain was less movement than normal such as disturbance of locomotion. Muscle strength was normal. The examiner specifically found that the Veteran did not have ankylosis in his right ankle. Also, there was no instability or suspected dislocation of the right ankle. In his Form 9, the Veteran stated that his MRI report was not properly considered. The June 2016 MRI report noted his reports of pain, limited motion, and swelling in his right ankle. The MRI assessment was osteoarthritis secondary to an earlier spiral fracture. It does not address his ranges of motion or provide evidence that a rating would be more appropriate under a different Diagnostic Code. The MRI showed osteoarthritis of the right ankle. Under Diagnostic Code 5003, arthritis is evaluated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. In this case, his limitation of motion is compensable. Therefore a 20 percent rating is not warranted. Based upon review of the evidence of record, the Board finds that the Veteran’s right ankle sprain is best contemplated by the 10 percent criteria under DC 5271. There is no evidence of ankylosis, malunion of the os calcis or astragalus, or an astragalectomy. The December 2015 VA examination shows the Veteran’s plantar flexion was to 35 degrees and his dorsiflexion was to 15 degrees. The Board acknowledges the Veteran had abnormal limited ROM, 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 ROM. His strength was normal, showing that he did not have weakness in his ankle. He retained more than half of his dorsiflexion and more than half 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, the Board considered whether a higher rating was warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is no probative evidence that these factors caused limitation of function equivalent to marked limitation of motion. Therefore, the preponderance of the evidence is against this claim. 38 C.F.R. § 4.3. A disability rating in excess of 10 percent for a right ankle sprain is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.