Citation Nr: 20051264 Decision Date: 08/03/20 Archive Date: 08/03/20 DOCKET NO. 15-19 017 DATE: August 3, 2020 ORDER Entitlement to a disability rating greater than 10 percent prior to October 7, 2019 for a right ankle disability is denied. Entitlement to an increased rating of 20 percent from October 7, 2019 for a right ankle disability is granted. FINDINGS OF FACT 1. Prior to October 7, 2019, the Veteran's right ankle disability manifested in moderate limitation in motion; marked limitation of motion is not shown prior to October 14, 2019. 2. For the period from October 7, 2019, the Veteran's right ankle disability manifested in marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent prior to October 7, 2019 for right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5010-5271. 2. The criteria for an increased rating of 20 percent for a right ankle disability from October 7, 2019 have been met. The criteria for a disability rating of 20 percent from October 7, 2019 for a right ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5010-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served as a member of the United States Army, with active duty service from March 2006 through September 2007. The Veteran has additional service with the Army National Guard. This appeal comes to the Board of Veterans’ Appeals (Board) from an October 2014 rating decision, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska (hereinafter Agency of Original Jurisdiction (AOJ)). In June 2018, the Veteran appeared and testified before the undersigned Veterans Law Judge at a Travel Board hearing. A copy of this transcript has been reviewed and associated with the claims file. The matter was previously before the Board in September 2018. In its decision, the Board restored the disability rating of 10 percent for the Veteran’s service connected ankle disability, which was reduced to 0 percent (non-compensable) by the AOJ. The Board further remanded the increased rating claim for further evidentiary development and a VA examination. The appeal has returned to the Board for an appellate review. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings). The Veteran seeks a higher disability rating for his right ankle disability. He is currently assigned a 10 percent disability rating under DC 5010-5271. Under DC 5271, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate. The maximum rating of 20 percent disabling is available under DC 5271 where the limitation of motion in the ankle is marked. Normal dorsiflexion is 20 degrees and normal plantar flexion is 45 degrees. 38 C.F.R. § 4.71, Plate II. The words "moderate" and "marked," as used in the various Diagnostic Codes, are not defined in the VA Schedule for Rating Disabilities. However, "marked" is defined as "noticeable; obvious; appreciable; distinct; conspicuous." See Webster's New World Dictionary, Third College Edition (1988) at 828. "Moderate" is defined as "of average or medium quality, amount, scope, range, etc." Id. at 871. Additionally, rather than applying a mechanical formula, the Board must evaluate all the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. With regards to the Veteran's right ankle disability, the Board finds that staged rating is warranted as the evidence shows distinct periods where his right ankle exhibited symptoms that would warrant different ratings. 1. Entitlement to a disability rating greater than 10 percent for a right ankle disability prior to October 7, 2019 For the period prior to October 7, 2019 the Board finds that the Veteran is not entitled to a rating in excess of 10 percent under DC 5010-5271. The Board notes that hyphenated diagnostic codes are used when rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In a February 2012 VA Ankle examination, the Veteran reported that he had continued lateral instability with recurrent inversions of up to one a week. The Veteran stated that he underwent surgery for chronic right ankle pain and instability at the Omaha, VA Hospital on January 4, 2011 (for which he has already been awarded a convalescence rating). The Veteran reported no use of narcotics due to his flight status but uses Tylenol and ibuprofen. The Veteran reported symptoms of continued right ankle pain, but improved stability since his January 2011 surgery. The Veteran reported flares of the right ankle with prolonged use and constant pain which does not go away. The VA examiner noted the Veteran's range of motion for plantar flexion was to 35 degrees and dorsiflexion to 15 degrees. His right ankle muscle strength was 4/5 and there was no diagnosis of ankylosis. See February 2012 VA Examination. In a May 2014 VA examination, the Veteran reported pain in his right ankle which has worsened. The Veteran reported flare-ups with prolonged standing, shifting weight to the left, running and biking. Upon evaluation of the ankle, the examiner noted the range of motion for dorsiflexion was limited at 15 degrees and plantar flexion was limited at 30 degrees. The Veteran was able to perform on the repetitive-use test without additional loss of function or range of motion, and his muscle strength of the left ankle was 5 out of 5. The VA examiner noted that pain was noted on examination and during range of motion testing which contributed to less movement than normal and disturbance of locomotion. There were no reports of crepitus, or a diagnosis of ankylosis. The examiner remarked under the Mitchell criteria that pain and weakness are likely to occur when the joint is used repeatedly over time. Flares could cause additional loss of motion, but actual additional loss cannot be determined unless an examiner is present to objectively measure any additional loss. See May 2014 C&P Examination. In the February 2015 VA Ankle examination, the Veteran reported flare-ups with prolonged standing and walking. The examiner noted the range of motion for dorsiflexion was limited at 15 degrees and plantar flexion was limited at 30 degrees. Pain was noted on exam but did not result in/cause functional loss. The examiner stated that the Veteran has tenderness over his right lateral anterior-fibular ligament on exam. Muscle strength was normal for the right ankle. There was no muscle atrophy or ankylosis. See February 2015 C&P Examination. With consideration of the relevant medical evidence and the Veteran's lay statements, the Board finds that the Veteran's right ankle disability did not demonstrate marked limitation of motion prior to October 14, 2019. While the evidence shows a decrease in muscle strength, the range of motion for plantar flexion and dorsiflexion remained the same. Moreover, while the Veteran reported flare-ups the record does not show that those flare-ups resulted in additional limitation in range of motion. Additionally, there was no evidence of crepitus or ankylosis. Taken as a whole, the Veteran's right ankle symptoms for this period are best characterized as moderate. The Board has further considered whether the Veteran is entitled to a rating under DC 5010, however the evidence does not show X-ray evidence of arthritis with occasional incapacitating exacerbation. As such, the Board finds that the evidence during this period does not demonstrate marked limitation in motion. Therefore, the Veteran is not entitled to a rating in excess of 10 percent prior to October 7, 2019. 2. Entitlement to an increased rating of 20 percent for a right ankle disability from October 7, 2019 Upon review of the evidence within this period on appeal, the Board finds that the Veteran's right ankle disability warrants a rating of 20 percent but no higher. The Veteran underwent a VA Ankle Conditions examination on October 7, 2019. The Veteran denied flare ups. The Veteran reported limitation in yard work, difficulty climbing a ladder, difficulty going up and down stairs. Physical examination revealed that the range of motion for dorsiflexion was limited at 15 degrees and plantar flexion was limited at 30 degrees. Pain was noted on examination and causes functional loss. Pain was also noted on the lateral malleolus where the hardware is clearly visible through the Veteran’s skin. There was evidence of pain with weight bearing, objective evidence of pain on passive range of motion testing, objective evidence of pain when the joint is used in non-weight bearing and objective evidence of crepitus and pain that significantly limits functional ability with repeated use over a period of time. There was no evidence of ankylosis or muscle atrophy. The examiner noted that deformity was an additional contributing factor of the Veteran’s ankle disability; that the Veteran has swelling near hardware in his ankle that prevents him from wearing tennis shoes; that the Veteran’s ankle is beginning to twist so that he toes out more and that this is causing a claw foot deformity and a remarkable callous on the bottom of the ball of the 3rd and 4th toes. The examiner remarked that the new diagnosis was residuals of right ankle surgery which is directly due to or related to the service-connected diagnosis. With consideration of all the relevant evidence during this period, the evidence demonstrates a marked limitation in motion under DC 5271. Specifically, the additional factors contributing to the disability constitutes a "noticeable" or "obvious" limitation of use of the Veteran’s ankle. Moreover, functional limitations/loss in performing daily activities such as walking, standing, or using stairs constitute a "distinct" rather than "average" disability. As such, a 20 percent rating, the maximum rating under DC 5271, is warranted for this period on appeal. The Board has further considered whether the Veteran's left ankle disability warrants a higher rating under DC 5270, ankylosis of the ankle. However, the medical evidence does not reflect a diagnosis of ankylosis throughout the period on appeal. Therefore, the Veteran is not entitled to a higher rating under DC 5270. Thus, resolving any reasonable doubt in favor of the Veteran, for the period from October 7, 2019, the Board finds that a 20 percent rating, but no higher is warranted. The Board again notes that a 20 percent rating is the highest schedular rating available under DC 5271. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.