Citation Nr: 20036652 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 16-22 364 DATE: May 28, 2020 ORDER Entitlement to an initial disability evaluation in excess of 10 percent for left ankle sprain with osteochondral defect is denied. REFERRED The issues of service connection for a low back disability or hip disability were raised in a February 2020 and April 2020 correspondences and are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action, to include providing information to the Veteran on how to file a claim for service connection. FINDING OF FACT The Veteran’s left ankle sprain with osteochondral defect is manifested by no more than moderate limited motion of the ankle. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for left ankle sprain with osteochondral defect have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has asserted that his left ankle sprain affects his lower back, hips, and hamstrings. See February 2020 Correspondence; April 2020 Correspondence. First, service connection for left and right hamstring strain is already in effect. As such, any hamstring symptomatology is already contemplated by the Veteran’s assigned evaluation for the hamstrings. Additionally, the issues of service connection for a low back or hip disability as secondary to the left ankle sprain are not listed in the March 2016 Statement of the Case and, as such, are not part of the appeal. Accordingly, they are referred to the AOJ for appropriate action, to include providing information to the Veteran on how to file a claim for service connection. Increased Disability Rating The Veteran contends that he is entitled to an initial disability rating for left ankle sprain with osteochondral defect in excess of 10 percent disabling. The Veteran’s left ankle sprain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for 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, Diagnostic Code 5271. Other diagnostic codes used to evaluate the ankle under the rating schedule include Diagnostic Code 5270 for ankylosis of the ankle, Diagnostic Code 5272 for ankylosis of the subastragalar or tarsal joint, Diagnostic Code 5273 for malunion of the os calcis or astragalus, and Diagnostic Code 5274 for astragalectomy. 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.”). 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). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left ankle sprain with osteochondral defect. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, cracking sounds after high impact activities, excess fatigability, incoordination and increased risk of rolling, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that flare-ups occur after heavy usage such as running or athletic activities, are moderate in severity, last 24-36 hours, and result in difficulty walking or squatting, would not result in symptoms more nearly approximating limitation so distinctive or emphasized that it would approximate marked limited motion. VA examinations collectively show that the Veteran’s ankle resulted in, at worst, 10 degrees with dorsiflexion and 35 degrees with plantar flexion. In a March 2012 VA examination, range of motion testing was 20 degrees with pain with dorsiflexion and 45 degrees with plantar flexion; tenderness to palpation was noted; and ankylosis was not found. In a March 2020 VA examination, range of motion during flare-ups was estimated to be 10 degrees with dorsiflexion and 35 degrees with plantar flexion; muscle strength testing was normal with no evidence of atrophy; instability or dislocation was suspected, but no laxity was found on anterior drawer or talar tilt testing; and ankylosis was not found. VA treatment records indicate that range of motion testing was normal, but with some loss of quality. See January 2013 and October 2014 VA Treatment Records. He was observed to ambulate and stand independently and unaccompanied on multiple occasions. See January 2013 through September 2019 VA Treatment Records. Though he reported an increased risk of rolling his ankle, he nevertheless continues to be able to engage in recreational activities such as running, rugby, or basketball. In light of this evidence, the Veteran’s disability picture more nearly approximates a finding of moderate limited motion of the ankle. The Board acknowledges the Veteran’s argument that he is entitled to an increased rating as he experiences laxity of the ankle. See July 2013 Notice of Disagreement; May 2016 Correspondence; April 2020 Correspondence. The Veteran’s reported laxity is already contemplated by limited motion, to include painful motion. To the extent that he experiences some laxity and instability, objective testing has generally revealed normal instability testing. Additionally, his gait, ambulation, and ability to stand were often observed to be normal. Further, the record indicates that though he may have some loss of quality in limitation, included laxity, he nevertheless is able to participate in recreational activities and plays rugby actively. See May 2018 VA Treatment Record. In light of this, the frequency, severity, and duration of any laxity does not rise to the level more nearly approximating limitation so distinctive or emphasized that it would approximate marked limited motion. The Board additionally acknowledges the Veteran’s argument that he is entitled to a higher rating as his left ankle disability was initially diagnosed as a compression fracture in service and should be characterized as a fracture versus a sprain. See July 2013 Notice of Disagreement; May 2016 Correspondence; April 2020 Correspondence. Initially, the Board notes that service treatment records indicate that August 2009 radiology imaging was suspicious for a fracture, however subsequent service treatment records ultimately characterized his in-service injury as an ankle sprain. More importantly, the March 2020 VA examiner noted that the Veteran’s diagnoses had changed and progressed into a left ankle sprain with osteochondral defect. The Veteran has not been shown to possess the medical expertise to render medical diagnoses and, as such, no probative weight is given to the Veteran’s lay assertions. Regardless, the Board emphasizes where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). For evaluation purposes, the characterization of the Veteran’s left ankle disability is significantly less important than the current manifestations and functional limitations resulting from the disability. As such, and having considered the medical and lay evidence, the Board finds that the Veteran’s assertions do not establish that his left ankle sprain and osteochondral defect more nearly approximating limitation so distinctive or emphasized that it would approximate marked limited motion. Accordingly, the Board finds that the Veteran’s left ankle with osteochondral defect is more nearly approximately by moderate limited motion of the ankle. A rating in excess of 10 percent disabling is thus not warranted under Diagnostic Code 5271. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. There is no evidence of ankylosis of the ankle (Diagnostic Code 5270), ankylosis of the subastragalar or tarsal joint (Diagnostic Code 5272), malunion of the os calcis or astragalus (Diagnostic Code 5273) or astragalectomy (Diagnostic Code 5274). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for left ankle sprain with osteochondral defect. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The claim for an initial disability rating in excess of 10 percent disabling for left ankle sprain with osteochondral defect is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Vang, 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.