Citation Nr: 20041945 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 15-29 212 DATE: June 19, 2020 ORDER An initial rating in excess of 10 percent for left ankle degenerative joint disease (a left ankle disability) is denied. FINDING OF FACT Throughout the course of the appeal, the Veteran’s left ankle disability has been manifested by objective complaints of pain and moderate limitation of motion; however, marked limitation of motion, ankylosis, or malunion of any of the ankle bones have not been shown. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to November 1980. This matter was previously before the Board in July 2018, at which time the Board remanded it to the Agency of Original Jurisdiction (AOJ) to associate outstanding VA and private treatment records, provide the Veteran with a VA examination, and issue a supplemental statement of the case (SSOC) if any benefit was denied by the AOJ. A review of the record reflects substantial compliance with the Board’s July 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an increased initial rating for a left ankle disability The Veteran asserts he is entitled to an increased rating for his left ankle disability. Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran appealed the initial disability rating assigned; thus, the appeal period stems from October 6, 2011. The Veteran’s left ankle disability is currently assigned a 10 percent rating f or moderate limitation of motion of the ankle under 38 C.F.R. § 4.71a, DC 5271. In order to warrant a rating in excess of 10 percent for the left ankle disability, the evidence must show: ankylosis of the ankle in plantar flexion less than 30 degrees, which warrants a 20 percent rating under DC 5270; marked limitation of motion, which warrants a 20 percent rating under DC 5271; ankylosis of the subastragalar or tarsal joint in poor weight-bearing position, which warrants a 20 percent rating under DC 5272; malunion of the astragalus with marked deformity, which warrants a 20 percent rating under DC 5273; or, an astragalectomy, which warrants a 20 percent rating under DC 5274. See 38 C.F.R. § 4.71a. Based on the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s left ankle disability. Specifically, during the August 2013 and June 2019 VA examinations, the Veteran reported pain with an inability to bend and flare-ups, during which he had to stop walking. Initial and repetitive-use range of motion testing during the August 2013 VA examination showed that left ankle plantar flexion was limited to 20 degrees with pain and that plantar dorsiflexion was limited to 10 degrees with pain. The June 2019 VA examination showed that the Veteran’s left ankle exhibited 45 degrees of plantar flexion and 10 degrees of dorsiflexion. There was no additional functional limitation due to pain, weightbearing, and/or repetitive testing. There was also no noted instability, ankylosis, or deformity, and the Veteran had normal sensory and motor functioning. In addition to these VA examination reports, the claims file contains the Veteran’s medical treatment records, which do not reflect limitation of motion or functional loss resulting from his left ankle disability that would warrant a rating in excess of 10 percent. In fact, in February 2016 and again in July 2019, the Veteran was noted to have “mild” symptoms pertaining to his left ankle disability by his medical providers. Therefore, based on this evidence, the Board does not consider the limitation in the Veteran’s left ankle to be “marked” in nature at any time during the appeal. Indeed, the range of motion testing conducted during the appeal, including in the August 2013 and June 2019 VA examination reports, shows that the left ankle disability has been at most limited to a moderate degree. 38 C.F.R. § 4.71a, DC 5010-5271. The Board also finds that no other diagnostic code pertaining to the ankle would provide any higher disability evaluation. Specifically, there is no evidence of ankylosis, malunion of the os calcis or astragalus, or astragalectomy as contemplated by DCs 5270, 5272, 5273 and 5274. 38 C.F.R. § 4.71a. Accordingly, there is no basis for a higher rating. The Board has also considered whether the Veteran’s left ankle disability may be better rated under 38 C.F.R. § 4.71a, DC 5284, which addresses non-specific foot injuries. When determining whether DC 5284 is “more appropriate” than DC 5276, the Court has noted that a more specific statute should be “given precedence over a more general one.” See Zimick v. West, 11 Vet. App. 45, 51 (1998); see also Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this case, the disability being considered is specific to the ankle limitation of motion, and DC 5271 is deemed by the Board to be the most appropriate code. Notably, this diagnostic code pertains specifically to the disability at issue (limitation on motion in the ankle), and also provides specific guidance as to how symptoms of this disability are to be evaluated. DC 5284 pertains only to “foot injuries,” which the Board finds to be less specific and more general. Indeed, a reasonable reading of the relevant diagnostic codes suggests that DC 5284 is more applicable to injuries that may not have been contemplated by other diagnostic codes, which is not the case here. Therefore, because there are specific diagnostic codes to evaluate ankle limitation of motion, consideration of other diagnostic codes (particularly DC 5284) for evaluating the disability is not appropriate. See 38 C.F.R. § 4.20. In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran that his service-connected disability is worse than the rating he currently receives. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Overall, the Veteran’s complaints have been taken into consideration, but there is no evidence that his left ankle disability exhibited significant or additional functional loss beyond that contemplated by the assigned 10 percent evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, there is no basis for an initial rating in excess of 10 percent for a left ankle disability at any time during the appeal period. The preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the Veteran’s claim is denied. 38 U.S.C. § 5107(b). A. Hodzic Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, 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.