Citation Nr: 20046464 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 18-53 973 DATE: July 10, 2020 ORDER Entitlement to a 20 percent rating, but no higher, for right ankle degenerative arthritis is granted. FINDING OF FACT The Veteran’s right ankle degenerative arthritis is manifested by marked limited motion of the ankle. CONCLUSION OF LAW The criteria for a 20 percent rating, but no higher, for right ankle degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty in the Marine Corps during July 1980 to June 1993. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 1. Entitlement to a 20 percent rating, but no higher, for right ankle degenerative arthritis is granted. The Veteran contends that his right ankle degenerative arthritis has increased in severity, thus warranting an increased rating. Specifically, the Veteran argued that the severity of his flare-ups warranted a higher rating. The Veteran's right ankle degenerative arthritis is currently rated under Diagnostic Codes 5003-5271. Initially, in a December 2015 rating decision, the rating was assigned under Diagnostic Code 5271 alone. But after further evaluation, the RO expanded the diagnostic code range to include 5003. The Board will address all applicable diagnostic codes. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84 (1997); 38 C.F.R. § 4.59. Generally, limitation of motion for degenerative arthritis is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5003. Diagnostic Code 5003 states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent rating is applicable when there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The Board has also considered 38 C.F.R. § 4.59 regarding painful motion. Under 38 C.F.R. § 4.59, with any form of arthritis, actual painful joints are entitled to at least the minimum compensable rating. See also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) ("Under 38 C.F.R. § 4.59, the trigger for a minimum disability rating is an 'actually painful, unstable, or malaligned joint.'"). In this case, however, the Veteran has already been assigned a compensable rating for painful motion under diagnostic code 5271. The assignment of this compensable rating took into account the Veteran's limitation of motion hampered by pain, as these symptoms were demonstrated by objective orthopedic testing on VA examination. The Board emphasizes that pain, by itself, does not constitute functional loss. Rather, there must be actual limitation of motion that is caused by pain. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Therefore, a rating under diagnostic code 5003 is not warranted. Under diagnostic code 5271, a rating of 10 percent disabling is warranted when limitation of motion of the ankle is moderate. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. So also, the maximum rating of 20 percent disabling is warranted where the limitation of motion in the ankle is marked. Id. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Notably, the terms "moderate" and "marked" are not defined under VA regulations. Those terms also do not appear to have a generally accepted medical definition. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In a December 2017 VA examination, the Veteran reported experiencing flare-ups which caused dull aches and inflammation resulting in some functional loss and/or impairment. He also reported using a brace regularly to decrease ankle pain and to stabilize his ankle. There was no indication of additional functional loss following the repetitive use testing or during flare-ups. The VA examiner conducted a range of motion test on his right ankle and noted abnormal range of motion with dorsiflexion limited from zero to 15 degrees. However, the plantar flexion was normal from zero to 45 degrees. Swelling and tenderness was noted during the range of motion testing and opined that it caused functional loss. The examiner also noted pain on weight bearing but no ankylosis. The Veteran was afforded another VA examination in February 2018, where he reported a needle sensation in his ankle, but no flare-ups. He also reported some functional loss and/or impairment, describing that his ankle hurts by the end of the day after being on his feet all day for work. The Veteran further reported that he continues to wear a brace regularly. The VA examiner conducted a range of motion test on his right ankle and noted abnormal range of motion with dorsiflexion limited from zero to 10 degrees and the plantar flexion was limited from zero to 10 degrees, as well. There was objective evidence of pain on passive range of motion and when the joint was used in non-weight bearing. However, the examiner reasoned that the pain did not cause or result in functional loss. Furthermore, the Veteran had another VA examination in October 2019, where the examiner reported moderate pain upon palpation of medial and lateral ankle related to degenerative arthritis of the right ankle. The range of motion test on his right ankle was abnormal with dorsiflexion again limited from zero to 10 degrees and the plantar flexion limited from zero to 10 degrees. There were no reported flare-ups, no ankle instability and no ankylosis. The examiner concluded that the pain did not result in functional loss or impairment. Thus, in the most recent VA examination, conducted in March 2020, the Veteran reported having pain all the time in his right ankle and a burning sensation. He also reported that his ankle rolled frequently and had to wear an ankle brace all the time. He stated that after receiving an MRI, another examiner advised that he should get surgery to repair his ankle. The range of motion test on his right ankle was abnormal with dorsiflexion limited from zero to 15 degrees and the plantar flexion limited from zero to 30 degrees. However, the examiner noted that there was no objective evidence of localized tenderness or pain during the examination and no pain on weight bearing. But the examiner also noted that pain and lack of endurance significantly limited the ankle’s functional ability with repeated use over a period of time. The examiner opined that the Veteran’s diagnosis had progressed to include right ankle instability. This is the maximum schedular rating available under the diagnostic code. After consideration of all the evidence of record, including the medical evidence and the lay evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's right ankle symptomatology more closely approximates the criteria for a 20 percent rating under diagnostic code 5271. Accordingly, the Board finds that the evidence of record demonstrates that his right ankle disability has increased in severity during the entire period on appeal. Previous VA examinations show a worsening from the Veteran’s December 2017 VA examination. As stated by the March 2020 VA examiner, his right ankle diagnosis has changed and progressed from the previous diagnosis, including instability. Here, the Board finds highly probative a October 2019 and February 2018 VA examination reports that demonstrates findings of dorsiflexion to 10 degrees and plantar flexion to 10 degrees on range of motion testing and the February 2020 VA examination report that found dorsiflexion to 15 degrees. Here, there is satisfactory evidence that demonstrates painful motion, increased limitation of motion due to pain, and additional factors such as interference with standing and walking throughout the appeal period. Taking into consideration the provisions of 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59 and DeLuca, supra, such clinical evidence of tenderness and limitation of motion with complaints of pain, swelling and instability warrants a finding of marked impairment throughout the appeal period. 38 C.F.R. § 4.71a, Diagnostic Code 5271. In addition, the Board has considered whether a higher or separate rating could be awarded under diagnostic code 5270 for the Veteran's right ankle degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Codes 5270. However, the pertinent medical evidence shows the Veteran has had the ability to move his right ankle throughout the appeal period. Under 38 C.F.R. § 4.71a, there are no other diagnostic codes available to evaluate disabilities of the ankle. The Board acknowledges the Veteran's belief that his right ankle symptoms are more severe than the current rating reflects. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability considering the rating criteria to be more persuasive than the Veteran’s reports regarding the severity of his condition. Therefore, the medical opinions hold more probative weight than the Veteran’s assertion. The Board has also considered whether a staged rating is appropriate for the Veteran's right ankle degenerative arthritis; however, this condition has been stable throughout the appeal period. Therefore, assigning a staged rating for such disability is not warranted. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran has not raised any other issues nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017), (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (Continued on the next page)   Based on the foregoing, the Board finds that a 20 percent rating for the Veteran's right ankle degenerative arthritis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi, 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.