Citation Nr: 20041357 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 15-00 049A DATE: June 17, 2020 ORDER Entitlement to an initial disability rating of 30 percent for right ankle disability is granted as of November 30, 2007. Entitlement to an initial disability rating of 20 percent as of November 30, 2007, and a disability rating of 30 percent from March 24, 2020, for left ankle disability, is granted. FINDINGS OF FACT 1. From November 30, 2007, post-traumatic arthropathy with nonunion fibular fracture and degenerative joint disease (DJD) of the Veteran’s right ankle produced marked ankle disability. 2. From November 30, 2007, post-traumatic arthropathy with DJD of the Veteran’s left ankle produced marked limitation of motion. From March 24, 2020, that disability produced functional impairment equivalent to ankylosis at 2 degrees of dorsiflexion. CONCLUSIONS OF LAW 1. From November 30, 2007, the criteria for a 30 percent disability rating for right ankle post-traumatic arthropathy with nonunion fibular fracture and DJD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.70, Plate II, 4.71, Diagnostic Codes 5262, 5270, 5271 (2019). 2. For left ankle post-traumatic arthropathy with DJD, the criteria have been met for disability rating of 20 percent from November 30, 2007, and 30 percent from March 24, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.70, Plate II, 4.71, Diagnostic Codes 5270, 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating The Department of Veterans Affairs (VA) assigns disability ratings by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). When evaluation of a musculoskeletal disability is based on limitation of motion, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened motion, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Evaluation of joints that have painful motion also should include consideration of whether there is pain on both active and passive motion, consideration of whether there is pain with and without weightbearing, and comparison of the range of motion to that of any opposite undamaged joint. 38 C.F.R. § 4.59; see Correia v McDonald, 28 Vet. App. 158 (2016). The Court has indicated that the Board of Veterans’ Appeals (Board) must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Right ankle disability The Veteran appealed the initial 20 percent disability rating assigned for his right ankle disability, which is described as post-traumatic arthropathy with nonunion fibular fracture and degenerative joint disease. Service connection for his right ankle disability was effective November 30, 2007. The Veteran’s right ankle disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under that code, limited motion of the ankle is rated at 20 percent if marked and 10 percent if moderate. The rating schedule indicates that normal ranges of motion of the ankle are to 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5270, ankylosis of the ankle is rated at 40 percent if in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. Ankylosis is rated at 30 percent if in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. Ankylosis is rated at 20 percent if in plantar flexion at less than 30 degrees. Under Diagnostic Code 5262, impairment of the tibia and fibula is rated at 40 percent for nonunion, with loose motion, requiring brace; 30 percent for malunion with marked knee or ankle disability, 20 percent for malunion with moderate knee or ankle disability, and 10 percent for malunion with slight knee or ankle disability. VA treatment from 1998 through 2020 reflect ongoing problems with both ankles. In November 2007 he reported history of trauma to his ankles and knees. The Veteran was in a wheelchair. The examiner noted chronic ankle deformity. In December 2007 a podiatrist noted varus deformity of the right ankle due to severe malalignment of the ankle joint. In February 2008 he had an antalgic gait using a cane, and provision of a wheelchair was planned. In May 2008 the Veteran reported that he received a rollator. He stated that in March 2008 he was given a pair of braces. In October 2008 a podiatrist noted a nonunion fracture of the right fibula. The podiatrist recommended use of braces. Records from December 2008 reflect prescription of orthopedic boots with insoles and double upright braces. In April and May 2009, the Veteran had physical therapy for his bilateral ankle disabilities. In August 2009 he had double upright braces. He used a cane and had an antalgic gait. He reported that he sometimes used a motorized wheelchair. On VA examination in January 2010, the Veteran reported injuries to both ankles in service, followed by episodes of swelling and pain with demanding activity. He stated that presently he had near constant swelling in his right ankle. He stated that he used a wheelchair most of the time to travel distances. He stated that he was unable to walk more than a few yards or stand more than a few minutes. The examiner observed an antalgic gait, with poor propulsion. The right ankle had lateral fibular instability. Motion of the right ankle was limited to 8 degrees of dorsiflexion and 20 degrees of plantar flexion. There was pain with motion. After three repetitions, the range of motion was the same. There was no ankylosis. There was malleolar swelling. On x-ray the right ankle had a nonunion fibular fracture, with displacement. The bilateral ankle disabilities made him unable to drive, slowed his performance of activities of daily living, and caused him to require assistance with many household tasks. In a May 2010 statement, the Veteran wrote that he ankle disabilities had worsened over time. He stated that presently he had to use an electric wheelchair. He related that if he walked or stood too long his feet swelled. He reported that sometimes he could not get out of bed and another person had to bathe him. In VA treatment in April 2011, the clinician noted that the Veteran had used double upright braces for several years. In May 2011, the Veteran used a motorized scooter. The podiatrist noted pain with motion in both ankles. In March, April, and May 2012 he reported chronic pain in both ankles. In August 2012 he was in a wheelchair and had bilateral ankle braces. There was minimal range of motion in the right ankle. In September and November 2012, he had an ankle brace. He used a wheelchair. In March 2013 he reported ongoing pain in both ankles. In treatment in December 2013 with private orthopedist L. F. L., M.D., the Veteran walked with a cane and had an antalgic gait. His right ankle had a decreased range of motion. In March 2014, Dr. L. wrote that the Veteran had end stage arthritis in both ankles. In a January 2015 statement, the Veteran wrote that his bilateral ankle disabilities made him unable to walk for long periods, and made him need his wheelchair every day. In VA treatment in June 2015, x-rays showed advance, severe arthritis in both ankles. In August 2016, a podiatrist noted pain, chronic swelling, crepitus, limited range of motion, and mild lateral subluxation of both ankles. In April 2017 the Veteran reported ongoing bilateral ankle pain. In December 2017, a VA clinician stated that both ankles had severe tibiotalar arthritis and posterior subluxation. In April 2018 a podiatrist noted that both ankles were swollen and had pain and crepitus on motion. In May 2018 the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge. The Veteran reported that his left and right ankles had swelling and limited range of motion. He stated that it was difficult to put weight on the ankles, and that walking on them was painful. He related that he had used a wheelchair and a walker for years. He stated that the ankles were so tender than he could barely stand to touch it or wear socks or shoes. He related that stiffness in his ankles affected the way he walked. In March 2019, the Veteran saw private podiatrist R. S. S., D.P.M. Dr. P. observed that the Veteran’s gait was antalgic, with moderate shuffling and rocking back, due to his inability to have any ankle motion. Dr. P. found that there was no motion in the subtalar joints. In March 2019 Dr. P. wrote that it was quite impressive that the Veteran could still walk considering the level of arthritis in his feet and ankles. He described the Veteran’s gait as significantly antalgic. On VA examination in August 2019, the Veteran reported constant, severe pain in both ankles. Because of ankle pain with antalgic gait, the Veteran occasionally used crutches and occasionally used a wheelchair. The range of motion of the right ankle was to 10 degrees of dorsiflexion and 20 degrees of plantar flexion, with pain on both motions. On three repetitions, the ranges of motion remained the same. There was no ankylosis. There was pain on active and passive motion. There was pain with weightbearing but not without weightbearing. There was no pain on palpation. The examiner estimated that pain further limited function equivalent to limitation to 5 degrees of dorsiflexion and 15 degrees of plantar flexion. Muscle strength was 5/5 for plantar flexion and dorsiflexion. Ankle instability or dislocation was not suspected. The examiner also found mild swelling, antalgic gait, and disturbance of locomotion. The examiner stated that bilateral ankle pain and antalgic gait affected work capacity by making it difficult to bear weight for prolonged periods. On VA examination in January 2020, the Veteran reported that on a road march in service he had onset of pain and swelling in his right ankle. He stated that in treatment a fracture of his fibula was found. He reported ongoing pain and stiffness in that ankle. He related that he could not walk any distance without pain and could not stand for long periods. He stated that the ankle always had pain, but had worse pain with weightbearing. The examiner found that the Veteran’s right ankle had degenerative arthritis and post-traumatic arthropathy with nonunion fibular fracture. The examiner found that motion of the ankle was limited to 5 degrees of dorsiflexion and 10 degrees of plantar flexion, with pain on both motions. On three repetitions, the ranges of motion remained the same. The ankle had no ankylosis. There was pain with active and passive motion, and with and without weightbearing. There was tenderness to palpation of the ankle. Muscle strength was 5/5 for plantar flexion and 5/5 for dorsiflexion. Ankle instability or dislocation was not suspected. The Veteran reported regular use of a cane, occasional use of a walker, and occasional use of a wheelchair. The examiner stated that he used the assistive devices because of his right ankle disability. Other factors that contributed to disability were mild swelling, instability of station, with an antalgic gait, and disturbance of locomotion, with inability to walk any distance without pain. The examiner stated that the Veteran’s ankle disability affected his work capacity in that his antalgic gait made it difficult to walk any distance, and he had increased pain with prolonged standing. In March 2020, private podiatrist and podiatric surgeon N. W., D.P.M., evaluated the Veteran’s ankles. (The Veteran submitted this document and a waiver of RO jurisdiction is not needed.) The Veteran reported a several-year history of severe chronic pain in both ankles, with resulting limited mobility. He stated that his ankle disabilities made him unable to walk without severe pain. He related that he had use a motorized wheelchair. Dr. W. listed diagnoses of arthritis and impingement in both ankles. Dr. W. found that the Veteran’s right ankle had severe pain with plantar flexion and limitation of 10 degrees of plantar flexion. On attempted dorsiflexion there was severe pain and complete loss of motion. Because of severe pain with severe limitation of motion, the Veteran was not able to repeat the motions. The ankle had pain with active and passive motion, and with and without weightbearing. On palpation there was severe, 10/10 pain related to an ankylosing condition with impingement. Dr. W. found that the contributing factors of disability were limited motion, excess fatigability, pain on movement, swelling, deformity, disturbance of locomotion, and interference with standing. Dr. W. found that the functional impairment of the ankle was equivalent to limitation to 0 degrees of plantar flexion and 0 degrees of dorsiflexion. Muscle strength in the ankle was 4/5 for plantar flexion and 3/5 for dorsiflexion. Dr. W. indicated that functional ankylosis of the ankle was at 10 degrees of plantar flexion and 0 degrees of dorsiflexion, in poor weightbearing position. Instability or dislocation of the ankle was suspected. It was not possible to perform the anterior drawer test. The talar tilt test showed laxity compared to the left ankle. Dr. W. stated that the right and left ankle disabilities affected capacity for occupational tasks by making the Veteran unable to perform any standing or walking function, and likely unable to perform heavy lifting. The examiner stated that the Veteran’s ankle disability affected his work capacity in that his antalgic gait made it difficult to walk any distance, and he had increased pain with prolonged standing. The Veteran’s service-connected right ankle disability included a fibula fracture with nonunion. Therefore, it is appropriate to consider that disability under Diagnostic Code 5262. While, for several years, treatment included a brace, the record does not contain any reports or findings of loose motion. The criteria for a 40 percent rating therefore have not been met. The fibula fracture and arthropathy have been manifested, however, by marked ankle disability. The disability therefore has met the criteria for a 30 percent rating under Diagnostic Code 5262. As record has shown marked right ankle disability from as early as 2007, the Board grants the 30 percent rating from the November 30, 2007, effective date of service connection. In March 2020, Dr. W. found that functional impairment of the right ankle was equivalent to ankylosis. As the position of functional ankylosis was not in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, and there was no finding of abduction, adduction, inversion, or eversion deformity, the ankylosis has not warranted a rating higher than 30 percent under Diagnostic Code 5270. 2. Left ankle disability The Veteran appealed the initial 10 percent rating assigned for his left ankle disability, which is described as post-traumatic arthropathy with DJD. Service connection for his left ankle disability was effective November 30, 2007. VA and private treatment records from 1998 through 2020 reflect ongoing problems with both ankles. In private treatment in September 2004, left ankle x rays showed an old fracture over the lateral malleolus. In VA treatment in October 2007, he was seen for left ankle pain and swelling. On VA examination in January 2010, the Veteran reported injuries to both ankles in service, followed by episodes of swelling and pain with demanding activity. He stated that presently he had repetitive swelling in his left ankle, with any walking. He stated that he used a wheelchair most of the time to travel distances. He stated that he was unable to walk more than a few yards or stand more than a few minutes. The examiner observed an antalgic gait, with poor propulsion. Motion of the left ankle was limited to 5 degrees of dorsiflexion and 14 degrees of plantar flexion. There was pain with motion. After three repetitions, the range of motion was the same. There was no ankylosis. There was malleolar swelling. On x-ray the left ankle had tibiotalar degenerative changes. The bilateral ankle disabilities made him unable to drive, slowed his performance of activities of daily living, and caused him to require assistance with many household tasks. On VA examination in August 2019, the Veteran reported constant, severe pain in both ankles. Because of ankle pain with antalgic gait, the Veteran occasionally used crutches and occasionally used a wheelchair. The range of motion of the left ankle was to 10 degrees of dorsiflexion and 20 degrees of plantar flexion, with pain on both motions. On three repetitions, the ranges of motion remained the same. There was no ankylosis. There was pain on active and passive motion. There was pain with weightbearing but not without weightbearing. There was no pain on palpation. Muscle strength was 5/5 for plantar flexion and dorsiflexion. Ankle instability or dislocation was not suspected. The examiner estimated that pain further limited function equivalent to limitation to 5 degrees of dorsiflexion and 15 degrees of plantar flexion. The examiner also found mild swelling, antalgic gait, and disturbance of locomotion. The examiner stated that bilateral ankle pain and antalgic gait affecting work capacity by making it difficult to bear weight for prolonged periods. On VA examination in January 2020, the examiner did not record the history of the Veteran’s left ankle disability. Motion of the left ankle was limited to 5 degrees of dorsiflexion and 10 degrees of plantar flexion, with pain on both motions. On three repetitions, the ranges of motion remained the same. There was pain with active and passive motion and with and without weightbearing. The ankle had no ankylosis. There was tenderness to palpation. Muscle strength was 5/5 for plantar flexion and 5/5 for dorsiflexion. Ankle instability or dislocation was not suspected. Other factors that contributed to disability were mild swelling, instability of station, with an antalgic gait, and disturbance of locomotion, with inability to walk any distance without pain. In the March 2020 evaluation, Dr. W. found severe pain with motion of the left ankle, with limitation to 15 degrees of plantar flexion and 2 degrees of dorsiflexion. Because of severe pain with severe limitation of motion, the Veteran was not able to repeat the motions. The ankle had pain with active and passive motion, and with and without weightbearing. On palpation there was severe, 10/10 pain related to an ankylosing condition with impingement. Dr. W. found that the contributing factors of disability were limited motion, excess fatigability, pain on movement, swelling, deformity, disturbance of locomotion, and interference with standing. Dr. W. found that the functional impairment of the ankle was equivalent to limitation to 0 degrees of plantar flexion and 0 degrees of dorsiflexion. Muscle strength in the ankle was 4/5 for plantar flexion and 3/5 for dorsiflexion. Dr. W. indicated that functional ankylosis of the ankle was at 10 degrees of plantar flexion and 2 degrees of dorsiflexion, in poor weightbearing position. Instability or dislocation of the ankle was suspected. It was not possible to perform the anterior drawer test. The talar tilt test did not show laxity compared to the right ankle. Dr. W. stated that the right and left ankle disabilities affected capacity for occupational tasks by making the Veteran unable to perform any standing or walking function, and likely unable to perform heavy lifting. The Veteran’s left ankle disability has been manifested by pain, swelling, and limitation of motion. From 2007 forward, the limitation of motion of that ankle has been marked. The Board grants an initial rating of 20 percent. In March 2020 Dr. W. found that pain and disturbance of locomotion made the functional impairment equivalent to ankylosis. Dr. W. found functional ankylosis at 10 degrees of plantar flexion and 2 degrees of dorsiflexion. Under Diagnostic Code 5270, ankylosis at between 0 and 10 degrees of dorsiflexion is assigned a 30 percent rating. The Board grants a 30 percent rating from March 24, 2020, the date of Dr. W.’s evaluation. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. J. Kunz, 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.