Citation Nr: 20042316 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 15-05 032 DATE: June 22, 2020 ORDER A compensable rating prior to December 13, 2014 and in excess of 10 percent on and thereafter for the service-connected residuals of a left ankle injury is denied. FINDINGS OF FACT 1. Prior to December 13, 2014, the Veteran’s left ankle disability had not more nearly approximated moderate limitation of motion of the ankle. 2. From December 13, 2014, the Veteran’s left ankle disability has not more nearly approximated marked limitation of motion of the ankle. CONCLUSION OF LAW The criteria for a compensable rating prior to December 13, 2014 and in excess of 10 percent on and thereafter for a left ankle disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran was scheduled for a Board hearing by videoconference but failed to report to the hearing. Thus, the request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(d). Increased Rating--Left Ankle Disability Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 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 picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s left ankle disability has been rated under Diagnostic Code 5271. 38 C.F.R. § 4.71a. Prior to December 13, 2014, the disability has been assigned a 0 percent (noncompensable) rating. From December 13, 2014, the disability has been assigned a 10 percent rating. Pursuant to Diagnostic Code 5271, marked limitation of motion of the ankle warrants a 20 percent rating, and moderate limitation of motion of the ankle warrants a 10 percent rating. 38 C.F.R. § 4.71a. Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. At a July 2012 VA examination, the Veteran reported occasional pain in the left ankle and a feeling of giving out when he steps on an uneven surface or off of a curb. He denied incapacitating episodes or flare-ups, interference with job or daily activity, instability, problems with repetitive use, weakness or sensation changes. Examination revealed a normal gait, walking 160 feet without any assistance, and no swelling, cellulitis or deformity. The Veteran could dorsiflex to 25 degrees and plantar flex to 45 degrees, with no objective or subjective signs of pain with range of motion. There was no instability and motor strength was 5/5. There was no atrophy or guarding of motion, but there was slight discomfort with medial joint line deep palpation. Thus, prior to December 13, 2014, range of motion of the Veteran’s left ankle was essentially normal. Even considering functional loss due to pain and other factors, his left ankle disability had not more nearly approximated moderate limitation of motion of the ankle. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, a higher 10 percent rating is not warranted. The Board notes that the Veteran is competent to give evidence about observable symptoms such as pain and the resultant limitation of motion. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence fails to show that he had the necessary limitation of range of motion to warrant a compensable rating. At a December 13, 2014 VA examination, the Veteran reported intermittent left ankle pain aggravated by walking on an uneven surface and the occasional use of a brace. He denied flare-ups. The Veteran could dorsiflex to 10 degrees and plantar flex to 45 degrees. Repetitive use testing revealed no additional loss of function or range of motion. There was pain on palpation but not on weightbearing. The examiner indicated that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over a period of time or during a flare-up. Muscle strength was 5/5. Instability was suspected but tests for instability were negative. The examiner indicated that the Veteran’s left ankle disability would not impact his ability to perform any type of occupational task. At an April 2019 VA examination, the Veteran reported intermittent left ankle pain aggravated by walking on an uneven surface and the occasional use of a brace but denied flare-ups. The Veteran could dorsiflex to 5 degrees and plantar flex to 35 degrees. Repetitive use testing revealed no additional loss of function or range of motion. There was pain on palpation but not on weightbearing. The examiner indicated that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over a period of time. Muscle strength was 5/5. Ankle instability was suspected, and one of two tests was positive. The examiner indicated that the Veteran’s left ankle disability would not impact his ability to perform any type of occupational task. Given the above, from December 13, 2014, the Veteran’s left ankle disability has been manifested by at worst dorsiflexion to 5 degrees and plantar flexion to 35 degrees. While dorsiflexion was moderately to markedly reduced, plantar flexion was normal or only mildly reduced at worst. Thus, even considering functional loss due to pain and other factors, the Veteran’s left ankle disability has not more nearly approximated marked limitation of motion of this joint. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, the next higher rating of 20 percent is not warranted. The Board acknowledges that the Veteran is competent to provide evidence about observable symptoms such as pain and the resultant limitation of motion. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence fails to show that he had the necessary limitation of range of motion to warrant a higher rating. Accordingly, the Board concludes that a compensable rating prior to December 13, 2014 and in excess of 10 percent on and thereafter for the service-connected residuals of a left ankle injury is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.