Citation Nr: 20043630 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 14-34 022 DATE: June 29, 2020 ORDER Entitlement to an initial disability rating greater than 10 percent for a left ankle disability is denied. Entitlement to a separate 20 percent rating for left ankle instability is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. During the appeal period, the Veteran’s left ankle disability has been manifested by pain and no more than moderate limitation of motion. 2. During the appeal period, the Veteran’s left ankle disability manifested as a moderate instability. 3. The Veteran’s service-connected disabilities do not preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. The criteria for a separate 20 percent rating for slight left ankle instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5262. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from October 2003 to February 2004, November 2006 to March 2007, and April 2008 to February 2012. The issues come before the Board of Veterans’ Appeals (Board) on appeal from November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision of November 2012 awarded service connection for status post-arthroscopic, open surgery of the left ankle, at a noncompensable rate, effective February 11, 2012. (A rating decision of March 2018 increased the noncompensable rating to 10 percent, effective February 11, 2012.) The Veteran and his wife, J. K., testified before a decision review officer (DRO) in December 2017. In September 2018, the Veteran, his wife, and her father, J. D., testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). Copies of the transcripts are of record. The issues were remanded in May 2019 to attempt to secure outstanding treatment records and afford the Veteran a VA examination addressing the Veteran’s complaints of functional loss with flare-ups. The Veteran was requested to provide release authorization for Baker Medicine, a private provider. In a September 2019 statement, he informed VA that he had never been treated at Baker Medicine. Additional VA treatment records were added to the claims file. The Board finds that the examination of November 2019 complies with the requirements outlined in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examination is adequate. There has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial disability rating greater than 10 percent for a left ankle disability is denied. 2. A separate 20 percent for left ankle instability is granted. Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly 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 remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. When evaluating musculoskeletal disabilities based on the limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Nonetheless, even when the background 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, under 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. 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.”). The Veteran’s left ankle disability is rated under Diagnostic Code 5271. 38 C.F.R. § 4.71a. Under Diagnostic Code 5271, a 10 percent evaluation is warranted for moderate limitation of motion of the ankle. A 20 percent evaluation is assigned for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a. Normal dorsiflexion is 20 degrees. Normal plantar flexion is 45 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran underwent a VA examination in February 2012. He reported pain and weakness in his left ankle. He also reported much pain when he stood too long, walk, or carry too much weight. The examiner diagnosed status-post arthroscopic and open surgery left ankle, with residual pain. The initial range of motion testing (ROM) for the left ankle plantar flexion ended at 50 degrees, with no objective evidence of painful motion. The ankle plantar dorsiflexion ended at 20 degrees, with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions. The post-test plantar flexion ended at 50 degrees; dorsiflexion ended at 20 degrees. The Veteran did not have additional limitations in ROM of the ankle following repetitive use testing nor any functional loss and/or functional impairment of the ankle. The Veteran did not have localized tenderness or pain on palpation of the joint/soft tissue of the left ankle. The muscle strength testing of the plantar flexion and the ankle dorsiflexion was noted as normal, 5/5. Joint stability testing was also normal, with the anterior drawer and talar reporting no laxity as compared with the opposite side. Ankylosis was not noted nor additional conditions, including shin splints, stress fracture Achilles tendonitis or Achilles tendon rupture, talectomy. He was able to walk a few steps on his heels and toes, and was able to squat. He did not use an assistive device. The examiner noted that the Veteran had a total ankle joint replacement in April 2010 and August 2010, with no residual signs and/or symptoms due to arthroscopic or other ankle surgery. The examiner noted that the Veteran had scars (surgical or otherwise) related to his left ankle disability. The scars, however, were not noted as painful and/or the total area of all related scars greater than 39 square cm (6 square inches). The examiner noted that the Veteran had other pertinent physical findings, complications, conditions, signs, and/or symptoms related to his diagnosis. He explained that “on examination of the left ankle/foot, there was a “J” shaped surgical scar at the lateral malleolus. Otherwise, there was no abnormal finding. There was no swelling, edema, or effusion. There was no weakness, instability, or tenderness. There was no pain during the movements, and the range of movements was within normal limits. The examiner noted that the Veteran’s left ankle did not impact his ability to work. The examiner remarked that the Veteran’s arthroscopic and open surgery left ankle had residual pain on weight-bearing. A September 2014 treatment report noted that both ankles had “good flexion and extension with normal inversion and eversion, good gastrocnemius strength and anterior tibialis muscle strength.” The Veteran underwent a second VA ankle conditions examination in January 2018. He reported throbbing pain, instability, popping, and clicking sounds when walking, and the inability to stand for a long period of time. The Veteran also reported weakness, stiffness, and pain. He rated the pain as 3/10. He stated that he had swelling. The examiner diagnosed status-post arthroscopic surgery. His dorsiflexion was 15 degrees. His plantar flexion was 35 degrees. The range of motion itself contributed to a functional loss. Pain with the dorsiflexion and plantar flexion was noted on the examination but did not result in/caused a functional loss. There was evidence of pain with weight-bearing, but no objective evidence of crepitus, or evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The examiner noted that the Veteran was not being examined immediately after repetitive use over time. However, the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Regarding whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, the examiner noted that he was unable to say without mere speculation because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examiner explained that he was unable to describe in terms of ROM because it was not possible to determine, without resorting to mere speculation, to estimate the loss of range of motion, because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The Veteran was not being examined during a flare-up. The examiner explained that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups. Regarding whether pain, weakness, fatigability, or incoordination significantly limited functional loss during a flare-up, the examiner explained that he was unable to describe in terms of ROM because it was not possible to determine, without resorting to mere speculation, to estimate the loss of range of motion, because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. No additional factors of the disability were noted. There was a reduction in muscle strength, due “entirely” to the left ankle disability. The muscle strength testing of the plantar flexion and the ankle dorsiflexion was noted as 4/5, active movement against some resistance. No ankle instability or dislocation was suspected. Neither ankylosis nor muscle atrophy was noted. No additional conditions were noted, including shin splints, stress fracture Achilles tendonitis or Achilles tendon rupture, or talectomy. The examiner noted that the Veteran scars, on the left lateral ankle, measuring 0.1 cm length x 6.8 cm width; and on the left medical ankle measuring 0.1 cm x 6.0 cm. The scars were not painful or unstable nor greater than 39 square cm. The examiner noted that the Veteran constantly used a supportive brace as an assisted device. The examiner noted that the Veteran’s ankle disability impacted his ability to work because of his inability to stand for long periods of time without swelling, which ranged from the size of orange to grapefruit. It was noted that the time lost from work in the past 12 months was 0-1 week. However, at the time of the examination, the Veteran was unemployed. The examiner noted that there was no objective evidence of pain on passive range of motion testing or when the joint was used in non-weight bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). The opposing joint was undamaged with no abnormalities noted on examination and with normal ROM. A private treatment record showed he sprained his left ankle in May 2018. In November 2019, the Veteran underwent another VA ankle conditions examination. The Veteran reported that the current symptoms of his disability included swelling, pain, twisting, and locking up. He reported using braces. The examiner diagnosed status post arthroscopic and open surgery left ankle. The Veteran reported flare-ups of the left ankle, which occurred two to three times a week and he stated they were severe, lasting at least a day. The left ankle flare-ups were precipitated by twisting and walking and alleviated by immobilization. The Veteran reported a functional loss or functional impairment of the left ankle with the inability to move. His dorsiflexion was noted to be 20 degrees; plantar flexion 0 10 degrees. The range of motion itself contributed to a functional loss. Pain was noted with the range of motion and contributed to a functional loss. The pain was noted both with dorsiflexion and plantar flexion on examination and caused a functional loss. There was evidence of pain with weight-bearing. There was also localized tenderness or pain on palpation in the lateral malleolus. The severity, however, was mild. The examiner noted that the relationship to the condition was pain with palpation due to previous injury and limitation with use. No objective evidence of crepitus was noted. The Veteran was able to perform repetitive use testing with at least three repetitions. There was an additional loss of function or range of motion after three repetitions. After three repetitions, the plantar flexion was 10 degrees; and the dorsiflexion was 20 degrees. The pain was noted to have caused a functional loss. Regarding repeated use over time, the examiner reported that the Veteran was not being examined immediately after repetitive use over time. Nonetheless, the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Neither pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. The examination was not being conducted during a flare-up. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups. The examiner stated that neither pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups. There were no additional contributing factors to the disability. Muscle strength testing of the plantar flexion and the dorsiflexion were normal, 5/5. No reduction in muscle strength, muscle atrophy, nor ankylosis was reported. Neither ankle instability nor dislocation was suspected in the left ankle. The examiner reported that the Veteran neither had nor ever had “shin splints,” stress fractures, achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy. The examiner noted that the Veteran had scars relating to his left ankle disability. The scars, however, were not painful, unstable, nor occupied a total area equal to or greater than 39 square cm. The scars were located on the lateral left ankle and measured 1) 4.5cm x 2mm; 2) 4.5cm x width 0.5cm. The examiner noted that the Veteran used braces constantly as an assistive device. Regarding other significant diagnostic test findings, the examiner noted a 2008 MRI of the left ankle, old avulsion injury at anterior tibiofibular ligament with strain. The examiner noted that the Veteran’s left ankle disability impacted his ability to work, for he was unable to stand and walk for a long period of time due to pain and immobility. The examiner remarked that there was objective evidence of pain on passive range of motion testing of the left ankle, as well, as the right ankle. There was no evidence of pain on non-weight-bearing testing of the left or right ankle. The Veteran’s treatment record shows his complaints of ankle pain. During his DRO hearing testimony, he reported having instability and the inability to stand longer than fifteen minutes, because of pain. He also reported being unable to walk more than one hundred yards, at a time, because the ankle swelled, twisted, and sprained, especially if he did not wear a brace. He reported his ankle freezing and popping, which he stated could be heard in the next room. During the Veteran’s Board testimony, he reported not wearing a boot and brace to support his left ankle at the hearing, and when this happens, he twists his ankle. He also testified that his ankle popped, produced grinding noises, and was swollen more often than it was not. Based on the evidence presented above, the Board finds that the Veteran’s left ankle disability more approximates a 10 percent rating, but no higher, for a moderate limitation of motion of the ankle. Even when considering the factors outlined in 38 C.F.R. §§ 4.40 and 4.45, the symptoms of his left ankle disability are not more accurately described as a marked limitation of motion. A 20 percent disability rating is not warranted for the evidence of record does not reveal that the Veteran had marked limitation of motion of the left ankle. 38 C.F.R. § 4.7. In fact, during the appeal period, the evidence has shown that the Veteran’s left ankle disability, at worst was moderate. In finding that the Veteran’s limitation of ankle motion is not more accurately defined as “marked,” the Board considers VA’s proposed change to Diagnostic Code 5271, which was published in February 2003. See 68 FR 6998. In the proposed regulation, VA noted that it hired an outside consultant to recommend changes “…to ensure that the schedule uses current medical terminology and unambiguous criteria, and that it reflects medical advances that have occurred since the last review. The consultant convened a panel of non-VA specialists to review the portion of the rating schedule dealing with the musculoskeletal system in order to formulate recommendations.” Id. Regarding Diagnostic Code 5271, VA noted that the terms “marked” and “moderate” are subjective and proposed to substitute more objective criteria that was recommended by the consultants. Specifically, it was proposed to assign a 20 percent rating if there was less than 5 degrees passive dorsiflexion or less than 10 degrees passive plantar flexion, and a 10 percent rating if there was less than 15 degrees of passive dorsiflexion or less than 30 degrees passive plantar flexion. Id. at 7018. It was noted that this change would promote consistent evaluations. Id. The Board finds the explanation of the proposed regulation to be persuasive. Significantly, VA consulted with specialist medical professionals who recommended objective criteria based upon current medical knowledge with the specific intent of ensuring more consistent outcomes for veterans. Then, in August 2017, VA again proposed to change Diagnostic Code 5271. See 82 FR 35719. VA noted that the criteria set forth in Diagnostic Code 5271 are “subjective and the terminology is vague, resulting in inconsistent evaluations.” VA proposed this time to define “marked” as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion, and “moderate” as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. Id. at 35723. VA noted that, “[a]s VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel.” Id. The Board finds the explanation of the proposed regulation to be persuasive because again, VA is expressing its intent to codify a policy that was employed to ensure more uniformity among its rating personnel. Additionally, the proposed criteria were similar to those proposed in 2003, with the exception that the word “passive” was not included. In Dorland’s Illustrated Medical Dictionary, 1592 (32nd ed. 2012), range of motion redirects the reader to “exercise.” Passive exercise “is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient’s own body.” Id., at 658. Active exercise is “motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part.” Id. It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran’s joint farther than he would be able to move it on his own. Therefore, the omission of the word “passive” from the 2017 proposed regulation is likely more favorable to veterans, which causes the Board to be further inclined to employ its use. In this case, the Veteran’s dorsiflexion was 20 degrees (normal) at two VA examinations and was 15 degrees at his January 2018 VA examination. A loss of only 5 degrees of dorsiflexion is not more accurately categorized as “marked.” At worst, the Veteran’s plantar flexion was 10 degrees in January 2019. The two VA proposed regulations noted that a plantar flexion of “less than” 10 degrees is considered marked. Although the Veteran had a plantar flexion of 10 degrees in January 2019, his dorsiflexion was also normal. The Veteran’s ranges of motion do not reach the definition of “marked” that was supported by a workgroup composed of subject mater experts from VA, the Department of Defense, and medical academia. Regarding other diagnostic codes related to the ankle, there is no evidence of record of the Veteran having ankylosis. Since the Veteran retains mobility in his left ankle joint, he does not manifest ankylosis of any form. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). There is also no evidence of malunion of the os calcis or astragalus with marked deformity astragalectomy. As the Veteran does not have any of these conditions, Diagnostic Codes, 5270, 5272, 5273, and 5274 are not for application. The examiners noted that the Veteran had scars associated with his left ankle disability. However, the scars were noted to be on the left lateral and medial ankle, measuring 0.1 cm length x 6.8 cm width; and 0.1 cm x 6.0 cm, respectively, and the total area not greater than 39 square cm (6 square inches). The scars were also noted as neither painful nor unstable nor. Therefore, a compensable rating under Diagnostic Code 7800, 7801,7802, 7804, and 7805 is not warranted. The Veteran has credibly testified to having left ankle instability, in December 2017 and at his Board hearing. Additionally, during his January 2018 and November 2019 examinations, the examiners noted his subject complaint of instability and his constant wearing of a supportive brace. Instability is not contemplated by Diagnostic Code 5271. However, under Diagnostic Code 5262, a separate 20 percent rating is warranted by analogy for an ankle disability based on moderate instability. Under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a. No examiner has noted instability on clinical examination. Joint stability testing has been reported as normal during the VA examinations. A February 2016 treatment record noted that once he fell because his left ankle give out. A December 2017 VA treatment record notes that his primary care provider recommended a left ankle brace “every day” at work “if pain is exacerbated with certain activities.” Another December 2017 note shows that he had the brace for “pain and instability only.” Pain is being compensated by his rating under Diagnostic Code 5271. The Veteran does not have malunion of the tibia and fibula and no medical professional has described symptoms that are analogous to malunion of the tibia and fibula. Therefore, his instability and use of a brace is most accurately described as moderate, not marked. Additionally, even though he requires a brace, his brace is for pain and instability, not for nonunion of the tibia or fibula, and no medical professional has stated that his symptoms are similar to a nonunion of tibia and fibula with loose motion or damage to the ligaments. As the Veteran’s symptoms from his left ankle disability have not met the criteria for a rating greater than 10 percent at any time during the appeal period under Diagnostic Code 5271 or greater than 20 percent under Diagnostic Code 5262, the Board may not stage his rating. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran or his representative, as required by Schafrath, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis for which to assign a higher rating for his left ankle disability. 3. A TDIU is not warranted. Total disability is considered to exist when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In November 2019, the Veteran was informed that he might be entitled to compensation at the 100 percent rate if he is unable to secure and follow substantially gainful employment because of his service-connected disabilities. Additionally, he was informed that his claims file was absent VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C. § 5107(a). While VA must assist the Veteran in substantiating his claim, that duty is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hurd v. West, 13 Vet. App. 449, 452 (2000) (the Veteran cannot passively wait for help from VA). As the Veteran has not provided a completed VA Form 21-8940, with detailed employment information, the Board is unable to determine whether his service-connected disabilities preclude him from securing or following substantially gainful employment. The form would allow VA to know the Veteran’s occupational and educational history. Additionally, it would show what his income was, to determine whether any employment was marginal. This information is not of record. Additionally, a November 2019 letter informed the Veteran that he met the criteria for closure of his Vocational Rehabilitation and Employment (VR&E) Program claim because he became a trained motorcycle technician and received approximately $3,000 in mechanic’s tools to use in employment. It is not possible to determine whether the Veteran is currently employed. Therefore, entitlement to a TDIU is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim, the claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.