Citation Nr: 20032950 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 20-15 242 DATE: May 12, 2020 ORDER An increased initial rating of 20 percent for a left ankle disability is granted. REMANDED Entitlement to an extraschedular rating for the Veteran’s left ankle disability is remanded. VETERAN’S CONTENTIONS The Veteran contends that he suffers from ankle pain and limitation of motion sufficient to warrant a disability rating higher than 10 percent. FINDING OF FACT The Veteran’s left ankle disability is productive of marked limitation of motion of the ankle caused by flare ups, limitation of range of motion, and ankle instability. CONCLUSION OF LAW The criteria for an increased disability rating of 20 percent for a left ankle disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from May 1998 to February 2008, and from March 2012 to August 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Increased rating for left ankle disability The Veteran’s service-connected left ankle disability is currently rated as 10 percent disabling pursuant to the criteria of 38 C.F.R. § 4.71a, DC 5003-5271. The Veteran asserts that the severity of the condition warrants a higher disability evaluation. See February 2020 Form 9 attachment. Disability ratings are determined by applying the rating criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board will also consider whether separate ratings for different periods of time are warranted based on the facts, a practice known as staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Id. A 20 percent rating is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Id. Under DC 5271, for limitation of motion of the ankle, a 10 percent rating is warranted for moderate limitation of motion, and a 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a. An award of a 20 percent rating for marked limitation of motion of the ankle is the maximum rating allowed under DC 5271. Id. When evaluating the severity of certain disabilities, including disabilities of the ankle, which are rated in part based on the degree of limited motion in the affected joint, VA is generally required to consider whether the Veteran’s disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Further, adequate range of motion test results include evaluating range of motion “for pain on both active and passive motion and in weight bearing and non-weight-bearing....” Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The record reflects that the Veteran underwent a VA examination in September 2018, as a result of which he was diagnosed with chronic left lateral collateral ligament sprain, left osteochondritis dissecans to include osteochondral fracture, and left ankle degenerative arthritis. During his examination, the Veteran reported flare-ups of the ankle with prolonged standing, walking, and any sport or physical activity. He also reported functional loss or impairment of the joint due to increased pain and stiffness, requiring frequent use of motrin for pain. Range of motion testing revealed abnormal range of motion (ROM) with dorsiflexion to 10 degrees and plantar flexion to 30 degrees. The decreased ROM constituted functional loss. There was also evidence of pain with weight bearing and evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Additionally, the examiner noted that the left ankle had less movement than normal due to ankylosis, adhesions, etc., along with disturbance of locomotion and interference with standing. Finally, the examiner noted that ankle instability was suspected because there was laxity compared to the opposite side. In June 2019, a private orthopedic surgeon assessed x-rays of the Veteran’s left ankle. The physician noted that the Veteran’s weight bearing left ankle radiographs demonstrated bony exostoses of the anterior tibial plafond and dorsal talar neck anterior and medial ankle joint impingement. Then, in a January 2020 note from a private orthopedic physician, the physician noted that Veteran presented with left ankle pain and decreased ROM. He also noted mild soreness after increased activity, and that the Veteran reported that he had not been able to move his left ankle as much as the other one, which was affecting his ability to run. He further noted that the Veteran had limited ROM at the ankle joint with 0 degrees dorsiflexion. More recently, a February 2020 medical opinion from the Veteran’s private orthopedic physician opined that the Veteran was experiencing chronic problems with his left ankle related to degenerative changes secondary to an ankle injury during service. The physician noted that the Veteran’s condition had resulted in significant dysfunction with activities such as running. The Board also acknowledges the Veteran’s lay statements that his ankle disability is manifested by limitation of motion, severe pain, and that his ankle sometimes feels locked up for days at a time. See February 2020 Form 9 attachment. In order for the Veteran’s left ankle disability to warrant a 20 percent disability rating under 38 C.F.R. § 4.71a, DC 5003-5271, the evidence must show either X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, or marked limitation of motion of the ankle. As stated previously, the September 2018 VA examination noted flare ups of the ankle with any physical activity, abnormal ROM with dorsiflexion and plantar flexion, ankylosis, and ankle instability. The Board notes that these symptoms, in combination with the Veteran’s private left ankle x-rays, and his private orthopedic physician’s opinion that the Veteran has a significant left ankle disfunction and limited ROM, rise to the level of a marked limitation of motion because his pain, ROM, and instability significantly restrict the Veteran’s movement on his left ankle. As such the Board finds that the evidence demonstrates that a disability rating of 20 percent for the Veteran’s service-connected left ankle disability is warranted pursuant to DC 5271. A higher disability rating under DC 5270 for ankylosis, however, is not warranted. In order to warrant a 30 percent rating under DC 5270, a Veteran must have ankylosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. In order to warrant a 40 percent rating a Veteran must have 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. Here, the Veteran’s VA examination and private treatment records show inconsistent statements regarding the Veteran’s ankylosis. As previously mentioned, in the September 2018 VA examination, the Veteran reported pain and stiffness in his left ankle, and the VA examiner reported that the Veteran’s left ankle had abnormal ROM with dorsiflexion to 10 degrees and plantar flexion to 30 degrees. The examiner noted that the left ankle had less movement than normal due to ankylosis. In January 2020 orthopedic note, the physician noted that the Veteran had limited ROM at the ankle joint with 0 degrees dorsiflexion, and mild soreness after activities like running. Although both of these records support a finding of left ankle ankylosis, neither demonstrates that the Veteran’s left ankle is ankylosed in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. As such, the criteria for a higher 30 percent rating based on ankylosis are not met. REASONS FOR REMAND An evaluation in excess of 20 percent for the Veteran’s service-connected left ankle disability on an extraschedular basis is remanded. In exceptional cases where schedular evaluations are found to be inadequate, claims may be referred to the Director of Compensation Service (Director) for consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1). The Board may not assign an extraschedular rating in the first instance; rather, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In this case, the Veteran has raised the issue of entitlement to an extraschedular rating. Here, the September 2018 VA examiner noted that the Veteran had symptoms of instability of his left ankle. The examiner’s observations and the Veteran’s lay statements reflect functional impairment relating to instability of the left ankle. As such, the evidence indicates that the Veteran has experienced functional loss or loss of occupational functioning that is not contemplated by the rating criteria set forth in Diagnostic Code 5271. Specifically, in addition to loss of range of motion of the ankle, the Veteran’s disability reflects ongoing instability. This symptom is not contemplated by the schedular rating criteria, which only consider limitation of motion. Accordingly, the Board finds that this matter should be referred to the Director for consideration of extraschedular evaluation under 38 C.F.R. § 3.321 (b)(1). The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records or private treatment records pertinent to the Veteran’s claim. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, forward the issue of entitlement to an evaluation in excess of 20 percent for a left ankle disability to the Director, Compensation Service, for extraschedular consideration consistent with 38 C.F.R. § 3.321(b). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.K. Stapleton, 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.