Citation Nr: 20052467 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 10-13 750A DATE: August 6, 2020 ORDER A rating in excess of 20 percent for residuals of left ankle injury, with degenerative arthritis of the left tibiotalar joint and osteochondritis dissecans, 10mm x 5mm, deep of the left medial talar dome, (hereinafter left ankle disability), prior to February 24, 2009, is denied. FINDING OF FACT Prior to February 24, 2009, the Veteran’s left ankle disability was not more nearly manifested by ankylosis with plantar flexion to between 30 and 40 degrees and/or dorsiflexion to between 0 and 10 degrees; or ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. CONCLUSION OF LAW Prior to February 24, 2009, the criteria for a rating in excess of 20 percent for left ankle disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes, 5270, 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1980 to February 1984, and from November 1990 to April 1991. The Veteran has been granted a 100 percent disability rating based upon individual unemployability due to service-connected disabilities, effective January 1, 2011. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A July 2018 Board decision granted the Veteran a 20 percent rating, and no higher, for left ankle disability prior to February 24, 2009. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion), and, in a January 2020 Court Order, the Court granted the Joint Motion, partially vacating the Board’s July 2018 decision and remanding the matter for compliance with the Joint Motion. The Board notes that in May 2010, the Veteran testified before a Veterans Law Judge (VLJ); a transcript of the hearing is associated with the record. In March 2017, the Veteran requested to participate in another Board hearing; in November 2017, the Veteran withdrew his request for a Board hearing and, that hearing request is deemed to have been withdrawn. 38 C.F.R. § 20.704(e). In March 2018, VA advised the Veteran that the VLJ before whom he testified is no longer with the Board and afforded him an opportunity to have another hearing before another VLJ. However, the Veteran did not respond within the allotted timeframe; therefore, the Board will consider the claim based on the evidence of record. Entitlement to a rating in excess of 20 percent for left ankle disability, prior to February 24, 2009. The Veteran, and his representative, contends that, prior to February 24, 2009, his left ankle disability is better rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5270, which allows for a disability rating up to 40 percent for ankylosis of the ankle. The Veteran concedes that he was not diagnosed with ankylosis during the period under consideration, however, he asserts that “the effects of his disorder were just as severe as the symptoms contemplated by [Diagnostic Code] 5270.” See Appellate Brief (June 2020). The Board concludes that, prior to February 24, 2009, the Veteran’s left ankle disability was manifested by marked limitation of motion with pain, swelling and tenderness, but not by symptoms that are more nearly manifested by ankylosis with plantar flexion to between 30 and 40 degrees and/or dorsiflexion to between 0 and 10 degrees; or ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes, 5270, 5271. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the 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, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. See 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). As noted above, the July 2018 Board decision granted the Veteran a 20 percent rating for his left ankle disability. In this regard, the Board found that, prior to February 24, 2009, the evidence shows that the Veteran’s left ankle disability was manifested by painful motion, limitation of motion, prescribed braces, and associated functional impairment. Accordingly, the Board concluded that, prior to February 24, 2009, the Veteran’s left ankle disability was more appropriately evaluated under the criteria of Diagnostic Code 5271, pertaining to limitation of motion of the ankle, rather than the criteria of Diagnostic Code 5270, relating to ankylosis of the ankle. Pursuant to Diagnostic Code 5271, a 10 percent rating is assigned for a moderate limited motion of the ankle and a maximum 20 percent rating for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The terms “moderate,” and “marked” are not defined in the Rating Schedule, but the Rating Schedule does show that for the ankle the normal range of plantar flexion is from 0 to 45 degrees, and the normal range of dorsiflexion is from 0 to 20 degrees. 38 C.F.R. § 4.71a, Plate II. Next, under Diagnostic Code 5270, a 20 percent rating is warranted for ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A maximum 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. “Ankylosis” is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary 94 (31st ed. 2007); Augustine v. Principi, 18 Vet. App. 505, 506 (2006). Treatment records, dated in June 2002, reveal pain upon range of motion (ROM) with some crepitus upon ROM of the ankle joint; no obvious swelling; dorsiflexion at 5 degrees; and plantar flexion at 40 degrees. In July 2002, the Veteran underwent ankle arthroscopy with chondral drilling. In a follow-up, the Veteran reported doing well; on physical examination, the examiner found dorsiflexion to neutral and plantar flexion to 35 degrees. In another follow-up, dated in September 2002, the Veteran reported ankle pain with all strenuous activities; on physical examination, the examiner found dorsiflexion to 5 degrees and plantar flexion to 45 degrees. The Veteran was instructed to continue working and activity, as tolerated, and to return if needed. Treatment record, dated in February 2003, reflects (1) full active ROM for the ankle, (2) recommendation for a Medrol Dose-Pack and Bledsoe boot to immobilize the foot and ankle completely for six weeks, and (3) instructions to return in six weeks for a follow-up. In the follow-up examination, dated in March 2003, the examiner found that the Veteran had improved significantly with wearing the Bledsoe boot, significantly less tenderness over the anteromedial aspect of the distal tibia, and minimal tenderness over the anterior dome of the talus. The Veteran was instructed to wean himself from the boot over the next three weeks, continue light duty for the next eight weeks, and to return in two months for another follow-up. In May 2003, the Veteran returned for his follow-up. The examiner found the Veteran had improved substantially since his ankle arthroscopy; on physical examination, the examiner found dorsiflexion to 10 degrees and plantar flexion to 40 degrees, tenderness over the anteromedial distal tibia, and mild soft tissue swelling. The Veteran was instructed to return to his duties as a police officer and that he would be discharged from care. Treatment record, dated in April 2004, reflects that the Veteran complained of increasing pain to the ankle. On physical examination, the examiner found dorsiflexion at 10 degrees and plantar flexion at 35 degrees. He was injected with Kenalog and Marcaine, advised to ice the ankle, and fitted for an ASO ankle brace. In November 2005, the Veteran reported that while running he started to experience ankle pain. On physical examination, the examiner noted no erythema, no ecchymosis, and no swelling. For ROM, the treatment record reflects a finding of no crepitus on examination. The treatment record additionally shows that the Veteran was able to perform a single heal raise, but complained of pain; muscle strength rated 5/5; and a negative finding for instability. The Veteran was instructed to return in two weeks and to begin the use of an ankle brace. At the follow-up, the Veteran reported continued ankle pain. On physical examination, the examiner found (1) no erythema, ecchymosis, or swelling, (2) ROM to be without crepitus, (3) that the Veteran was able to perform a single heal raise, but with complaints of pain, (4) muscle strength rated 5/5, and (5) a negative finding for instability. X-ray report, dated in November 2006, reflects no acute abnormality in either ankle; and osteochondritis dissecans medial aspect of the left talar dome with no obvious loose body within the joint space. Additionally, in November 2006, the Veteran reported the use of an ankle brace; in this regard, he stated that the brace relieved pain and increased ankle functionality. He additionally reported a pain level of three, and that pain increased with walking. Treatment record, dated in October 2007, shows that the Veteran arrived at his appointment ambulating without assistance. He complained of ankle pain, but denied numbness, tingling, weakness, or instability. Podiatric surgery consultation, dated in June 2008, reflects complaints of ankle pain. The Veteran reported being able to work, and being able to stand about three to four hours a day at work. He additionally reported that when wearing a boot, his ankle would lock up. On observation, the examiner noted that the Veteran had a mild limp favoring his left lower extremity and that he had no assistive device. On physical examination, the examiner found no swelling, sores, lesions, wounds, ecchymosis, or gross deformity. In January 2009, the Veteran reported walking 30 to 60 minutes daily, for the last month, on the treadmill; he complained of ankle pain, but stated that he was determined to lose weight and control his diabetes mellitus. VA examination report, dated in May 2007, reveals bilateral ankle dorsiflexion from 0 to 15 degrees, and bilateral ankle plantar flexion from 0 to 35 degrees. The examiner noted (1) that the limitation was by stiffness, but without a sharp endpoint, (2) there was no change in ROM of either ankle after the Veteran performed 10 repetitions of standing on his forefeet and toes, and (3) that ROM of the ankles did not change after repetitive motion exercise. Next, the report of examination shows that the Veteran reported increased weakness, pain, fatigability and incoordination in both feet and ankles, left more so than the right, after repetitive motion exercise, such as walking one hour in his job as a security agent. In this regard, he reported that it would cause him to sit down and rest, in particular, to rest his left ankle. In response to this lay report, the examiner noted that to state ROM after repetitive motion outside this clinic would be resorting to speculation. Lay statements and argument, relevant to the time period on appeal, reflect that the Veteran’s left ankle disability was manifested by symptoms of pain, limitation of motion, and altered gait. See VA Form 646 (April 2009) & VA Form 646 (November 2009). Board testimony, dated in May 2010, shows that prior to February 24, 2009, the Veteran had some ROM for the left ankle, but since his ankle fusion surgery, which took place on February 24, 2009, the Veteran has no ROM for the left ankle. See Hearing Testimony 5-7 (May 2010). Next, Social Security Administration (SSA) records reveal that the Veteran elected to have the February 2009 surgery due to ankle pain. He additionally reported that since his surgery, he has been using crutches and a wheelchair to get around. SSA work history report reflects that the Veteran worked as a police officer from 1992 to 2003, bus driver from 2000 to 2006, security officer from 2007 to 2008, and as an auditor from 2008 to February 2009. The report additionally shows that the Veteran was able to walk, stand, sit, climb, stoop, kneel, crouch, handle and reach for objects throughout those periods of employment. As an auditor, the Veteran described his job as auditing packages, weighing packages, lifting packages, and standing. As a bus driver, he described his job as picking up people all day. As a police officer, he described his job as patrolling buildings, checking doors and security of property. Thus, prior to February 24, 2009, the evidence of record, lay and medical, reflects that the Veteran’s left ankle disability was manifested by marked limitation of motion with pain, swelling and tenderness, but not by ankylosis in dorsiflexion or plantar flexion. In this regard, the evidence reflects consistent reports of left ankle pain, weakness, fatigability, and increased functional impairment, to include extreme pain while walking. The Board acknowledges the Veteran’s lay reports of symptoms and that there was additional functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time, etc. However, upon consideration of the record, the Board finds that the disability picture of the left ankle disability, prior to February 24, 2009, overall, was manifested by marked limitation of motion with pain, swelling and tenderness, but not by ankylosis in dorsiflexion or plantar flexion. Although there were temporary periods in which the left ankle was immobilized, at no time throughout the appeal period was there evidence of ankylosis of the left ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Next, the Board recognizes the Veteran’s contention that evidence of left ankle pain, stiffness, swelling, and his prescribed brace and Bledsoe boot amount to the functional impairment equivalent of ankylosis. The Board, however, finds that a higher rating for the Veteran's left ankle disability on the basis for functional impairment equivalent of ankylosis is not warranted. While VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Hollenquest v. Wilkie, No, 17-4846 (Vet. App. May 15, 2019) (explaining why Johnston and Spencer allow for denial of a claim for a higher rating based on ankylosis without considering flare-ups); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Even were the Board to accept that a higher rating may be assigned based on the functional impairment equivalent of ankylosis, as the Veteran appears to acknowledge that there was no actual finding for ankylosis prior to February 24, 2009, a higher rating is not warranted because the evidence does not show that the Veteran experienced functional impairment equivalent to ankylosis. In this regard, the Board, first, observes that the medical evidence is negative for a finding of ankylosis of the left ankle. Next, the preponderance of the evidence is against finding that left ankle symptomatology is equivalent to ankylosis. The Veteran’s left ankle was examined numerous times throughout the appeal period; the examinations, overall, showed that the Veteran’s left ankle was not manifested by immobility and consolidation of an ankle joint. As discussed above, there is evidence that the Veteran was able to do heal raises, walk, and run prior to February 24, 2009. It is noted that the Veteran reported experiencing pain, however, his reports are absent of ankle fixity or immobility. Indeed, the record shows that prior to February 24, 2009, the Veteran was able to walk, stand, sit, climb, stoop, kneel, and crouch for prolonged periods of time; again, it is noted that the Veteran reported increased pain during these periods of time, but his reports do not show that his symptomology manifested to immobility of the left ankle. For the additional functional loss to warrant a higher rating for the left ankle disability, that loss must rise to the level of ankylosis restricting plantar flexion to between 30 and 40 degrees and/or dorsiflexion to between 0 and 10 degrees, which has not been shown. Therefore, the Board finds that prior to February 24, 2009, the assigned rating adequately contemplated the functional impairment resulting from the Veteran’s left ankle disability. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 208. Lastly, the Board acknowledges that the May 2007 VA examiner was unable to state the reduction that the Veteran would experience in his ROM “in the feet or ankles after repetitive motion outside this clinic” without resorting to speculation. However, as the Veteran was rated at the maximum schedular level for limitation of motion prior to February 24, 2009, the inability to estimate any lost ROM or any other inadequacy in the VA examination as to flare-ups is harmless error. Additionally, in Johnston, the Court found that even where there is evidence that the appellant had some functional loss due to pain in his wrist, a remand for the Board to consider functional loss due to pain was not appropriate because the appellant was already receiving the maximum disability rating available for limitation of motion of the wrist. Accordingly, further examination or opinion is unnecessary to decide the claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Both the lay and medical evidence are probative here. However, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for a higher evaluation, as explained and discussed above. The Board has considered whether a higher disability evaluation is available under any other potentially applicable provision of the Rating Schedule. However, a higher evaluation is not warranted based on any other provision of the Rating Schedule. Accordingly, a rating in excess of 20 percent for left ankle disability, prior to February 24, 2009, is denied. There is no basis to stage the rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). See Fenderson v. West, 12 Vet. App. 119, 126 (1999). There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.