Citation Nr: 20038457 Decision Date: 06/04/20 Archive Date: 06/04/20 DOCKET NO. 14-15 588 DATE: June 4, 2020 ORDER Entitlement to an increased rating from 10 to 20 percent, but no higher, for residuals of a right ankle fracture during the period prior to November 14, 2019, is granted. Entitlement to a disability rating in excess of 20 percent for residuals of a right ankle fracture during the period after November 14, 2019, is denied. FINDINGS OF FACT The Veteran’s residuals of a right ankle fracture has been manifested by marked limited motion of the ankle during the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in of 20 percent for residuals of a right ankle fracture during the period prior to November 14, 2019, have 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. 2. The criteria for a rating in excess of 20 percent for residuals of a right ankle fracture during the period after November 14, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1996 to January 2000. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in September 2015. A transcript of the hearing is associated with the claims folder. This case was previously before the Board in December 2015 and May 2018, on which occasions the claims were remanded. 1. Entitlement to an increased rating from 10 to 20 percent for residuals of a right ankle fracture during the period prior to November 14, 2019, is granted. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran is currently rated at 10 percent for the period prior to November 14, 2019, under Diagnostic Code 5271. Diagnostic Code 5271 assigns a 10 percent disability rating for moderately limited range of motion of the ankle and a 20 percent disability rating for markedly limited range of motion of the ankle. Pursuant to VA regulations, normal range of motion for ankle dorsiflexion is 0 to 20 degrees and for plantar flexion is 0 to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. The words slight, moderate, marked, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Use of terminology such as severe by VA examiners and others, although an element to be considered by the Board is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board must also consider whether the Veteran is entitled to separate or higher disability ratings under other diagnostic codes that relate to the ankle. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, and 5270 through 5274. Under Diagnostic Code 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. Diagnostic Code 5270 provides the following disability ratings for ankylosis of the ankle. A 20 percent rating is warranted for ankle ankylosis in plantar flexion of less than 30 degrees. A 30 percent rating is warranted for ankle ankylosis in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. A 40 percent rating is warranted for ankle ankylosis in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. Diagnostic Code 5272 provides a 10 percent disability rating for subastragalar or tarsal joint ankylosis in good weight-bearing position, and a 20 percent disability rating for ankylosis in poor weight-bearing position. Diagnostic Code 5273 provides a 10 percent disability rating for moderate deformity resulting from the malunion of the os calcis or astragalus, and a 20 percent disability rating for a marked deformity resulting from the malunion of the os calcis or astragalus. Diagnostic Code 5274 provides a 20 percent disability rating for astragalectomy. Following a review of the record, the Board finds that the preponderance of the evidence supports a rating of 20 percent for residuals of a right ankle fracture for the period prior to November 14, 2019. In this regard, the Veteran submitted a private examination in April 2014. The examiner did not report range of motion. However, the examiner did note localized tenderness of the right ankle. Additionally, the examiner noted reduced muscle strength, with no muscle atrophy observed. There was no evidence of ankylosis or malunion of the calcaneus or talus. (4/21/2014, VA Examination, p. 2-3). In June 2014 the Veteran was afforded a VA ankle disabilities examination. His range of motion during dorsiflexion was 0 to 15 degrees, while his range of motion during plantar flexion was 0 to 30 degrees. The Veteran was able to perform repetitive-use testing, which resulted in a reduction of range of motion during dorsiflexion to 0 to 10 degrees, while plantar flexion remained the same. The examiner noted a slight reduction of muscle strength, but muscle atrophy was not observed. There was no evidence of ankylosis or malunion of the calcaneus or talus. Joint stability testing revealed normal stability. (6/17/2014, C&P Exam, p. 2-4). In March 2016 the Veteran was afforded another VA ankle disabilities examination. His range of motion during dorsiflexion was 0 to 10 degrees, while his range of motion during plantar flexion was 0 to 30 degrees. He was able to perform repetitive-use testing with no reported additional loss of range of motion. The examiner noted that he experiences flare-ups of pain that caused functional loss. However, the examiner did not provide an estimation of range of motion during flare-ups. There was a slight reduction of muscle strength, but muscle atrophy was not observed. There was no evidence of ankylosis or malunion of the calcaneus or talus. Joint stability testing revealed laxity of the right ankle. (3/3/2016, C&P Exam, p. 3-6). The Board finds that the Veteran’s symptoms most closely approximate a 20 percent rating for the period prior to November 14, 2019. In this regard, the Veteran’s range of motion was approximately half the normal range. See 38 C.F.R. § 4.71a, Plate II. Moreover, there was reduction of muscle strength and laxity of the right ankle. In granting a 20 percent rating, the Board has assigned the maximum allowable rating under Diagnostic Code 5271 for the period prior to November 14, 2019. The Board finds that an extraschedular rating in excess of 20 percent is not warranted as the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). The Board has also considered other Diagnostic Codes pertaining to the ankle. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, the Board finds that the Veteran is not entitled to ratings under other diagnostic codes pertaining to the ankle, as the evidence of record indicates that he does not have ankylosis of the ankle, subastragalar joint, or tarsal joint. Moreover, the record indicates that he does not have malunion of the os calcis or astragalus. Accordingly, the Board finds that his right ankle disability picture most nearly approximates a 20 percent evaluation during the period prior to November 14, 2019. 2. Entitlement to a disability rating in excess of 20 percent for residuals of a right ankle fracture during the period after November 14, 2019, is denied. Following a review of the record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for a right ankle disability for the period after November 14, 2019. In this regard, a November 2019 VA examination indicated that the Veteran’s range of motion during dorsiflexion was 0 to 10 degrees, while his range of motion during plantar flexion was 0 to 25 degrees. He was able to perform repetitive-use testing with no reported additional loss of range of motion. The examiner estimated that after repeated use over time, and during flare-ups of pain, his range of motion during dorsiflexion is reduced to 0 to 5 degrees, while range of motion during plantar flexion is reduced to 0 to 20 degrees. The examiner noted a slight reduction of muscle strength, but muscle atrophy was not observed. There was no evidence of ankylosis or malunion of the calcaneus or talus. Joint stability testing revealed laxity of the right ankle. (11/20/2019, C&P Exam, p. 5-10). The Veteran is assigned the maximum allowable rating under Diagnostic Code 5271. The Board finds that a rating in excess of 20 percent is not warranted as the competent and credible medical evidence reflects that the symptoms are fully contemplated by Diagnostic Code 5271. He has not raised the matter of an extraschedular rating, and the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). (Continued on the next page)   The Board has also considered whether a higher rating is warranted under other diagnostic codes pertaining to the ankle. However, the Board finds that the Veteran is not entitled to ratings under other Diagnostic codes pertaining to the ankle, as the evidence of record indicates that he does not have ankylosis of the ankle, subastragalar joint, or tarsal joint. Moreover, the record indicates that he does not have malunion of the os calcis or astragalus. Accordingly, the Board finds that the preponderance of the evidence is against his claim for a rating in excess of 20 percent for a right ankle disability for the period after November 14, 2019. 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. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.