Citation Nr: 20045049 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 15-30 505 DATE: July 7, 2020 ORDER A 20 percent increased rating from March 14, 2014 and continuing thereafter for a left ankle disorder, to include fracture, degenerative joint disease and degenerative arthritis is granted. REMANDED A total disability rating based on individual unemployability (TDIU) due to service-connected left ankle disorder is remanded. FINDING OF FACT With resolution of the doubt in his favor, for the entirety of the rating period on appeal, the symptoms of the Veteran’s left ankle disorder more nearly approximated marked limitation of motion. CONCLUSION OF LAW The criteria to establish an increased 20 percent rating for the entirety of the rating period on appeal for a left ankle disorder have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.27, 4.71a, Diagnostic Code (DC) 5271 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1967 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the St. Louis, Missouri Regional Office (RO). In August 2018, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2019). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2019). Left ankle disorder Under DC 5271, a 10 percent rating is warranted for moderate limitation of motion and a maximum schedular rating of 20 percent for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. Id. at Plate II. The words “moderate” and “marked” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2019). The Veteran’s left ankle disorder is rated 10 percent disabling from August 13, 2007 to March 19, 2019 and 20 percent disabling from March 20, 2019 and continuing under DC 5271. The appellate period is from March 14, 2014, the receipt date of the Veteran’s increased rating claim. In a March 2014 statement, the Veteran reported experiencing increased left ankle pain, constant swelling and trouble walking several blocks without having to stop and rest. In the June 2014 VA ankle examination, the Veteran was diagnosed with a left ankle fracture and degenerative joint disease. The Veteran reported experiencing trouble with stairs and flare-ups manifested by pain and swelling. The Veteran treated his left ankle disorder with pain medication and foot soaking to reduce swelling. Initial range of motion for the left ankle revealed plantar flexion at 45 degrees or greater and dorsiflexion at 10 degrees. There was pain on dorsiflexion. The Veteran performed repetitive use testing with at least three repetitions with no additional loss in range of motion. The examiner indicated that less movement than normal, pain on movement and disturbance of locomotion contributed to the Veteran’s left ankle functional impairment. There was no localized tenderness, pain on palpation, ankylosis, additional left ankle conditions, or other pertinent physical findings. Muscle strength and joint stability testing revealed normal findings. The examiner indicated that the Veteran did not experience flare-ups during the examination and was unable to opine as to whether the Veteran had loss of motion, increased fatigue, weakness, or incoordination with flare-ups. In a June 2014 statement, the Veteran reported experiencing left ankle flare-ups once per month for approximately five days described as pain and swelling. The Veteran indicated having to elevate, soak and stay off of his left ankle to reduce the pain and swelling. In the August 2014 notice of disagreement, the Veteran reported that his left ankle prevented him from doing a lot of “daily activities.” During flare-ups, the Veteran had trouble standing and walking for prolonged periods. The Veteran indicated having to wear special shoes due to left ankle swelling. In the August 2015 substantive appeal, the Veteran reported experiencing decreased range of motion and flare-ups described as constant pain and swelling that resulted in trouble ambulating without the use of a cane. In the October 2015 VA ankle examination, the Veteran was diagnosed with left ankle degenerative arthritis. The Veteran reported experiencing left ankle pain, instability, swelling and tightness. The Veteran reported experiencing flare-ups described as pain and swelling from prolonged walking and standing. He reported experiencing functional impairment manifested as decreased range of motion and trouble with walking and standing. Initial range of motion for the left ankle revealed plantar flexion at 40 degrees and dorsiflexion at 10 degrees. The range of motion did not contribute to functional loss. There was pain on motion but it did not cause functional loss. There was pain with weight-bearing and pain on palpation. No crepitus was noted. The Veteran performed repetitive use testing with at least three repetitions resulting in no additional loss of function or range of motion. The Veteran was examined immediately after repetitive use testing and the examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examination was conducted during a left ankle flare-up and the examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. An additional factor that contributed to the Veteran’s left ankle disorder was disturbance of locomotion that required the use of a cane. Muscle strength testing revealed normal findings. There was no reduction in muscle strength, muscle atrophy or ankylosis. The examiner indicated having suspected instability or dislocation but joint stability testing revealed normal findings. There were no additional left ankle conditions or pertinent physical findings. The Veteran regularly used a cane. VA treatment records dated March 2018, October 2018 and January 2019 reflect the Veteran’s report of experiencing left ankle pain and stiffness. Given that the Veteran is rated the maximum 20 percent rating from March 20, 2019 and continuing thereafter, the Board will not discuss the findings in the March 20, 2019 and October 2, 2019 VA ankle examinations. However, since March 14, 2014, the Veteran reported and the evidence reflects the Veteran having experienced essentially the same left ankle symptoms, including limited range of motion, as reflected in the March 2019 and October 2019 VA examinations. The Board will grant a 20 percent rating for the entirety of the rating period, based on the benefit-of-the-doubt doctrine. For the entirety of the rating period on appeal, the Veteran experienced decreased range of motion, left ankle pain, swelling, instability, and trouble with walking and standing for prolonged periods. The Veteran had to wear special shoes and use a cane to assist in ambulating. Although the June 2014 VA examiner measured plantar flexion at 45 degrees or greater, subsequent VA examinations revealed significantly decreased plantar flexion. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an increased 20 percent rating is warranted and the claim is granted. REASON FOR REMAND The matter is remanded for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR The October 2015 VA examiner indicated that the Veteran was unemployable due to his service-connected left ankle disorder. The issue of entitlement to a TDIU has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). Remand is warranted for due process development for the issue of TDIU, including adjudication by the RO. The Veteran has reported having been retired; however, the Veteran has not submitted a VA Form 21-8940, Application For Increased Compensation Based On Unemployability. 2. Provide the appropriate VCAA notice concerning the claim for a TDIU. 3. Ask the Veteran to complete and return a VA Form 21-8940, Application For Increased Compensation Based On Unemployability, and/or other documents containing the necessary employment and education history. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.