Citation Nr: 20028099 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 15-16 986 DATE: April 22, 2020 ORDER Entitlement to an increased rating of 30 percent, but no higher, for residuals of a left ankle fracture is granted. REMANDED Issue of entitlement to service connection for a left ankle muscle impairment injury or disability is remanded. FINDING OF FACT The evidence is in at least relative equipoise as to whether the Veteran has ankylosis of the left ankle in dorsiflexion at zero degrees. CONCLUSION OF LAW The criteria for entitlement to an increased rating of 30 percent for residuals of a left ankle fracture have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 5270, 5271 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1983 to March 1984. The Veteran also has National Guard service. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2012 rating decision issued by the Department of Veterans Affairs (VA). See February 2013 Notice of Disagreement (NOD); March 2015 Statement of the Case (SOC); April 2015 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a December 2015 hearing. See December 2015 Hearing testimony. In June 2018, the Board denied the Veteran’s claim of entitlement to a rating in excess of 20 percent for residuals of a left ankle fracture. June 2018 Board decision. The Board also remanded the issue of entitlement to a separate rating for left foot disability as secondary to the Veteran’s service connected left ankle disability. Id. The Veteran appealed the Board’s denial of entitlement to a rating in excess of 20 percent for residuals of a left ankle fracture and, in April 2019, the United States Court of Appeals for Veterans Claims (CAVC) remanded the claim through a Joint Motion for Partial Remand for further development of the evidence. April 2019 CAVC decision. In October 2019, the Board remanded the claim for further development in accordance with the April 2019 CAVC decision. October 2019 Board decision. The Board finds that there has been substantial compliance with its remand directives. The Agency of Original Jurisdiction (AOJ) developed the evidence per the October 2019 Board remand directives and continued the denial of the Veteran’s claim of entitlement to a rating in excess of 20 percent for residuals of a left ankle fracture. February 2020 Supplemental Statement of the Case (SSOC). During the pendency of the appeal, the AOJ considered whether separate left foot disability ratings were warranted as secondary to the Veteran’s service connected left ankle disability per the June 2018 Board decision and granted entitlement to service connection for left tibial and peroneal neuropathy, and for pes planus, plantar fasciitis with degenerative arthritis and left plantar calcaneal spur. February 2020 Rating decision. The AOJ denied entitlement to service connection for a left ankle muscle impairment injury or disability. February 2020 SSOC. The issues of entitlement to a rating in excess of 20 percent for residuals of a left ankle fracture and to service connection for a left ankle muscle impairment injury or disability are now back before the Board. Entitlement to an increased rating of 30 percent, but no higher, for residuals of a left ankle fracture The Veteran asserts entitlement to a rating in excess of 20 percent for his service connected residuals of a left ankle fracture based on ankylosis. April 2015 VA Form 9. The Veteran testifies that, during some mornings, his ankle swells and is so stiff he can hardly move it. December 2015 Hearing testimony. His representative contends that a 30 percent rating is warranted based on the November 2015 opinion by private treatment provider C M B, D.O., and the January 2010 VA examiner’s opinion, which support ankylosis in his left ankle with dorsiflexion at zero degrees. March 2020 Appellate brief. The Veteran’s residuals of a left ankle fracture is currently evaluated under Diagnostic Code 5270 and rated as 20 percent disabling based on marked limited motion of his left ankle. May 2012 Rating decision. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance.” Id., quoting 38 C.F.R. § 4.40. The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As an initial matter, the Boards notes that a 20 percent rating is the highest schedular rating available under Diagnostic Code 5271. The assignment of a particular Diagnostic Code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board finds Veteran’s residuals of a left ankle fracture is more appropriately evaluated under Diagnostic Code 5270, which considers evidence of ankylosis and allows a rating higher than 20 percent. After careful and thorough review of the evidence, the Board finds that the Veteran’s residuals of a left ankle fracture more closely approximates the criteria for a 30 percent rating under Diagnostic Code 5270. Under Diagnostic Code 5270, a 20 percent rating is warranted for ankylosis of the ankle in plantar flexion less than 30 degrees. 38 C.F.R. § 4.71a. The next higher rating of 30 percent is warranted for ankle ankylosis in plantar flexion between 30 and 40 degrees or dorsiflexion between 0 and 10 degrees. Id. The next higher and highest rating of 40 degrees is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with inversion or eversion deformity in abduction or adduction. See id. Dr. C M B opined that the Veteran has “definite ankyloses due to adhesion, scar tissue, and arthritis, directly related to the fracture.” November 2015 Third party correspondence. He also found that the Veteran could flex his left ankle up to 10 degrees and dorsi-flex his ankle up to 5 degrees. Id. The January 2020 VA examiner opined that his examination of the Veteran supports the reported left ankle ankylosis diagnosis by Dr. C M B. January 2020 VA examination for ankle conditions. The VA examiner found that the Veteran had left ankle plantar flexion up to 10 degrees due to pain with dorsiflexion only at 0 degrees. Id. The VA examiner opined that the Veteran had ankylosis on the left side in good weight bearing position. Id. Dr. C M B and the January 2020 VA examiner are medical professional qualified to evaluate the Veteran’s left ankle condition, who also had the opportunity to examine the Veteran and the evidence of record. They also provided a detailed report with citation to evidence to support their findings and opinions. The Board, thus, finds that the opinions are probative. The Board recognizes that the December 2013 VA examiner found similar range of motion restrictions in the Veteran’s left ankle, but opined that the Veteran did not have ankylosis. December 2013 VA examination for ankle conditions. The December 2013 VA examiner is also entitled to probative weight as a medical professional qualified to evaluate the Veteran’s ankle condition who examined the Veteran. The December 2013 VA examiner’s findings and opinions raise a reasonable doubt as to whether the Veteran has ankylosis in his left ankle. In resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s residuals of a left ankle fracture has manifested with ankylosis of the left ankle with dorsiflexion at 0 to 5 degrees. Accordingly, entitlement to an increased rating of 30 percent rating is warranted for his service connected disability of residuals of left ankle fracture. The Board considered whether the next higher rating of 40 percent is warranted. A July 2013 VA treatment provider noted the Veteran to have left ankle flexion up to 40 degrees and dorsiflexion to 0 degrees, with no mention of his flexion fixed at more than 40 degrees, dorsiflexion at more than 10 degrees, or having an inversion or eversion deformity. See July 2013 VA treatment evidence. The December 2013 VA examiner’s finding that the Veteran’s left ankle had plantar flexion to 20 degrees and dorsiflexion to 5 degrees with no mention of an inversion or eversion deformity is contrary to finding plantar flexion fixed at more than 40 degrees or dorsiflexion at more than 10 degrees. See December 2013 VA examination for ankle conditions. Likewise, Dr. C M B’s finding that the Veteran can flex his left ankle up to 10 degrees and dorsi flex to 5 degrees is also contrary finding plantar flexion fixed at more than 40 degrees and dorsiflexion at more than 10 degrees. November 2015 Third party correspondence. Finally, the January 2020 VA examiner found the Veteran had left ankle plantar flexion from 0 to 10 degrees and dorsiflexion from 0 to 0 degrees. January 2010 VA examination for ankle conditions. Neither the Veteran nor the medical evidence shows a left ankle inversion or eversion deformity. The preponderance of the evidence is, thus, against finding that the Veteran’s left ankle has manifested with ankylosis and a plantar flexion at more than 40 degrees, dorsiflexion at more than 10 degrees, or with inversion or eversion deformity in abduction or adduction. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, entitlement to a rating higher than 30 percent for residuals of a left ankle fracture is not warranted. REASONS FOR REMAND Issue of entitlement to service connection for a left ankle muscle impairment injury or disability is remanded. The Board cannot make s fully informed decision on the issue of entitlement to service connection for a left ankle muscle impairment injury or disability because clarification is needed by a VA examiner as to the nature of the Veteran’s left ankle muscle impairment injury or disability. The September 2019 VA examiner opined that there is less than a 50 percent probability that the Veteran’s “muscle disability impairment/injury” is related to service, but the Board finds that the nature the muscle impairment/injury discussed is unclear. See September 2019 VA examination medical opinion. The VA examiner noted that the November 2015 opinion from Dr. C M B found a muscle injury with atrophy in the left foot/ankle, but the VA examiner only found diagnoses for pes planus, plantar fasciitis, degenerative arthritis, and left plantar calcaneal spur. Id. There was no specific discussion of a muscle injury. Id. It is unclear if and how the examination addressed the muscle injury noted by Dr. C M B. In addition, the September 2019 VA examiner opined that the “muscle disability impairment/injury” was not related to service based on no diagnosis of a muscle injury during service, but the examiner did not discuss whether it may have been due to the same in service left ankle injury that resulted in the Veteran’s service connected residuals of a left ankle fracture nor does the VA examiner consider whether the Veteran’s has a muscle disability secondary to the residuals of his left ankle fracture. The Board, therefore, finds that the Veteran should be provided another opportunity for his left ankle muscle impairment injury or disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and cause of any left ankle muscle disability or injury. If possible, use the same medical professional who provided the September 2019 VA examination for ankle conditions. The medical professional should respond to the following: (a) Identify any evidence of a left ankle muscle injury or disability and describe its nature. Specifically consider the November 2015 opinion and findings by Dr. C M B noting “abnormal movement and weakened movement due to muscle injury” and that “muscles on the left side have atrophied.” (b) For any identified left ankle muscle injury or disability, is it at least as likely as not (a 50 percent or greater probability) that it began in (or is otherwise related to) the Veteran’s military service? The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms. The examiner should specifically consider the Veteran’s June 1988 left ankle injury while on active duty for training. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. (c) If any identified left ankle muscle injury or disability is found and determined not to be related directly to service, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that it is proximately due to or the result of his service connected disabilities, including the residuals of a left ankle fracture. If not proximately due to a service connected disability or disabilities, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it is aggravated (any incremental increase in disability, does NOT have to be permanently made worse) by one or more service connected disabilities, to specifically include residuals of a left ankle fracture. (d) If a left ankle muscle injury or disability is deemed to be unrelated to service or one or more service connected disabilities, the examiner should, if possible, identify the cause considered more likely and explained why that is so. (Continued on next page)   2. Review the record and ensure that all development sought in this remand has been completed. Arrange for any further development indicated by the results of the development requested above if deemed warranted by the AOJ, and re-adjudicate the claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.