Citation Nr: 20053063 Decision Date: 08/11/20 Archive Date: 08/11/20 DOCKET NO. 16-60 692 DATE: August 11, 2020 ORDER An initial disability rating in excess of 10 percent for the service-connected right ankle status post arthroscopic surgery with strain is denied. An initial compensable rating for the service-connected right ankle cyst is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s service-connected right ankle strain disability was manifested by no more than moderate limitation of motion without ankylosis. 2. The Veteran’s service-connected right ankle cyst did not result in current scarring, residuals, or functional impact at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for the service-connected right ankle status post arthroscopic surgery with strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5271. 2. The criteria for a compensable evaluation for the service-connected right ankle cyst have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 5271-7819. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1991 to May 2015. This case was remanded by the Board of Veterans’ Appeals (Board) in December 2018. The remand directives have been substantially satisfied. A May 2020 Hearing Officer decision increased the Veteran’s rating for his service-connected right ankle status post arthroscopic surgery with strain disability from zero percent to 10 percent disabling. As 10 percent is not the highest possible rating available under the relevant diagnostic code, this issue remains on appeal with the Board. Increased Ratings Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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. Consideration must 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); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (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, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Initial Rating in Excess of 10 Percent for Service-Connected Right Ankle Status Post Arthroscopic Surgery With Strain The Veteran seeks a higher evaluation for his service-connected right ankle status post arthroscopic surgery with strain. He asserts that his right ankle disability is worse due to constant pain and difficulty walking and driving. This disability has been evaluated pursuant to Diagnostic Code (DC) 5271, for limited motion of the ankle. Under DC 5271, a 10 percent evaluation is assigned for moderate limitation of the ankle, and a maximum 20 percent evaluation is assigned for marked limitation of motion. 38 C.F.R. § 4.71a. Normal ankle dorsiflexion is from 0 to 20 degrees and normal plantar flexion is from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The terms “moderate and “marked are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. By definition, ankylosis contemplates a total absence of joint mobility. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is “[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint,” Stedman’s Medical Dictionary 87 (25th ed. 1990)). On a December 2014 VA Disability Benefits Questionnaire (DBQ) for the ankles, the examiner diagnosed the Veteran with residual strain of the right ankle status post arthroscopy. The Veteran reported that flare-ups impact the function of the ankle. He described the impact of flare-ups in the right ankle as limited use and pain in the 5-7 range. Range of motion measurement showed right ankle plantar flexion ending at 45 degrees or greater, with no objective evidence of painful motion; and right ankle dorsiflexion (extension) to 20 degrees or greater, with no objective evidence of painful motion. The Veteran was able to perform repetitive -use testing with three repetitions on the right. After a minimum of three repetitions, range of motion showed plantar flexion to 45 degrees or greater and dorsiflexion to 20 degrees or greater. Thus, there was no additional limitation in range of motion of the ankle following repetitive-use testing. The Veteran was also not shown to have any functional loss and/or functional impairment of the ankle. There was no localized tenderness or pain on palpation of joints/soft tissue of either ankle. Muscle strength testing results were normal. There was no joint instability. It was noted that the Veteran does not have ankylosis of the ankle, subtalar and/or tarsal joint. Pain in the joint was noted. The examiner indicated that the Veteran’s ankle condition does not impact the Veteran’s ability to work. VA outpatient treatment records dated in March 2016 and August 2016 show that the Veteran was seen and treated for chronic right ankle pain. He reported that the pain started in 2008 and gradually worsened. The right ankle was noted as tender to palpation along lateral joint line and non-tender along plantar fascia. There was full range of motion. The Veteran underwent a medical procedure, which included a sterile injection. It was noted that he tolerated it well, with no complications. VA outpatient treatment records dated in March 2017 show that the Veteran was seen and treated for his right ankle pain. Examination of his right ankle revealed dorsiflexion to 20 degrees and plantarflexion of 40 degrees. There was negative anterior drawer and negative talar tilt. There was some mild tenderness over his peroneal tendons, but only mild pain with resisted peroneal strength testing. There was some mild swelling in the front, with more synovitis than effusion with some boggy synovium in the anterior aspect. It was noted that the Veteran had positive tenderness over the anteromedial, anterolateral, and anterior central joint. There was no tenderness over the posterior tibial tendon. The physician remarked that there was no tenderness throughout the Veteran’s entire foot. VA outpatient treatment records dated in December 2017 show that the Veteran was seen and treated for right ankle pain. It was noted that there was minimal tenderness over the lateral and medial gutters. The pain was predominantly direct anterior at tibiotalar joint, between the tibialis anterior and the extensor digitorum longus at the level of the ankle joint. The examiner noted that the Veteran had minimal pain with maximum dorsiflexion, which was approximately 15 degrees. There was no significant pain with maximum plantar flexion. The anterior drawer and talar tilt were negative. Muscle strength testing results were normal. There was good circumduction and no crepitus. X-ray results did not reveal any significant synovitis. There was also no evidence of significant instability or cartilage damage. VA outpatient treatment records dated in 2019 document mild tenderness to palpation and decreased sensation in the Veteran’s right ankle. He endorsed a history of chronic pain. On a September 2019 VA DBQ for the ankles, the Veteran reported having flare-ups. He reported that he has shooting pain that goes into the side of his calf. He also reported having a numb and pinching sensation on the front of his ankle, which makes him limp. He explained that his flare-ups caused functional loss or functional impairment such as limping and pain while running. Range of motion measurements showed right ankle plantar flexion ending at 45 degrees or greater, with pain; and right ankle dorsiflexion (extension) to 20 degrees or greater, with pain. There was no localized tenderness or pain on palpation of joints/soft tissue of either ankle. There was no evidence of pain with weight bearing and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing, but there was no additional loss of function or range of motion after three repetitions. Though the examination was not conducted during a flare-up or after repetitive use over time, the examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-up or with repetitive use over time. She also noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups or with repeated use over a period of time. The examiner explained further that, following review of the Veteran’s records, and giving consideration to the Veteran’s subjective complaints and objective examination findings, her clinical knowledge and medical expertise allowed her to conclude that there remains no rational basis to make a notation regarding any additional losses of function or motion during a flare-up or with repeated use over time. The Veteran maintained full strength without atrophy. There was also no ankylosis or instability. No evidence of pain was documented with passive range of motion testing, nor with non-weight bearing status. The Veteran’s right ankle was evaluated in comparison to his opposing left ankle. The examiner indicated that the Veteran’s ankle condition does not impact his ability to work. Based on the foregoing, the Board finds that entitlement to a disability rating higher than 10 percent for a right ankle strain disability is not warranted. The Veteran’s right ankle strain disability has not been manifested by marked limited ankle motion and does not meet the schedular criteria for the higher 20 percent under Diagnostic Code 5271. 38 C.F.R. §§ 4.71a. Here, the Veteran’s symptoms are most consistent with moderate limitation of range motion. The Veteran maintained full strength without evidence of atrophy. There was also no evidence of ankylosis. The additional factors under Correia v. McDonald, 28 Vet. App. 158 (2016), were considered during the September 2019 VA examination. Still, a higher rating is not warranted as the Veteran had no pain on passive range of motion, nor with non-weight bearing status. Thus, the Board finds that the current 10 percent rating appropriately reflects the Veteran’s symptomatology. The evidence of record has not shown that the Veteran’s right ankle disability resulted in pain so severe as to cause marked limitation of motion of the ankle, even considering his statements regarding flare-ups, which were incorporated in the examiner’s analysis. As such, a rating in excess of 10 percent is not warranted. Additionally, there are no other applicable diagnostic codes. In particular there is no evidence of functional impairment comparable to ankylosis, including of the subastragalar or tarsal joint, and no evidence of malunion of os calcis or astragalus, or astragalectomy. The Veteran is therefore not entitled to a higher or separate rating under DCs 5270, 5272, 5273, or 5274. 38 C.F.R. § 4.71a. The preponderance of the evidence is against a rating higher than 10 percent for a right ankle strain disability. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, the claim is denied, and the current 10 percent rating is continued. An Initial Compensable Rating for Service-Connected Right Ankle Cyst The Veteran contends that he is entitled to an initial compensable rating for his service-connected right ankle cyst. He has been assigned a noncompensable rating for this disability since June 1, 2015, the effective date for service connection. The Veteran’s right ankle cyst is evaluated as a benign skin neoplasm under 38 C.F.R. § 4.118, Diagnostic Code 5271-7819. This code instructs that a cyst not of the head, face, or neck be rated as a scar (under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805) or based on impairment of function. Deep scars not of the head, face, or neck are rated under 38 C.F.R. § 4.118, Diagnostic Code 7801. A 10 percent rating is warranted for scarred areas of 39 to 77 square centimeters, a 20 percent rating is warranted for scarred areas of 77 to 465 square centimeters, a 30 percent rating is warranted for scarred areas of 465 to 929 square centimeters, and a 40 percent rating is warranted for scarred areas greater than 929 square centimeters. A deep scar is defined as one associated with underlying soft tissue damage. Superficial scars not of the head, face, or neck are rated under 38 C.F.R. § 4.118, Diagnostic Code 7802. A maximum 10 percent rating is warranted for scarred areas greater than 929 square centimeters. Unstable or painful scars are rated under 38 C.F.R. § 4.118, Diagnostic Code 7804. A 10 percent rating is warranted for 1 or 2 such scars, a 20 percent rating is warranted for 3 or 4 such scars, and a 30 percent rating is warranted for 5 or more such scars. If one or more scars are both painful and unstable, 10 percent is to be added to the total rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. On a December 2014 VA examination for ankle conditions, the examiner noted that the Veteran had right ankle scars that are related to the residual strain right ankle status post arthroscopy. It was indicated that the scars were not painful or unstable. The total area of each scar was noted to be less than 39 square cm (6 square inches). The examiner remarked that the scar on the medial ankle measured 0.5cm by 0.25cm and that the scar on the lateral ankle measured 1cm by 0.25cm. The Veteran was afforded a VA examination in September 2019. The examiner noted that the Veteran had tumors and neoplasms of the skin, including malignant melanoma. The Veteran was diagnosed with synovial and ganglion cysts of the right ankle. The examiner noted that the Veteran did not have any treatment or procedures other than systemic or topical medications in the past 12 months for any skin condition. The total body area of each cyst was noted as none. The exposed area of each cyst was also noted as none. The examiner indicated that there were no visible characteristics for the cysts. No specific skin conditions were noted on the examination report. It was indicated that the neoplasm was benign. The Veteran did not have any residual conditions or complications due to the neoplasm or its treatment. There was no scarring, or disfigurement of the head, face or neck. No other pertinent physical findings, complications, conditions, signs and/or symptoms were found. The examiner indicated that the Veteran’s cysts did not impact the Veteran’s ability to work. He remarked that the combined area of the cysts was less than five percent, with a combined total exposed area noted as none. On a September 2019 VA examination for ankle conditions, the examiner noted that the Veteran’s scars were not painful or unstable. The measurement of the lateral right ankle scar was 1cm by 0.25cm, and the anterior right ankle scar was measured as 1cm by 0.25cm. The examiner noted that the Veteran’s cysts do not impair function. Accordingly, the Board finds that a compensable rating is not warranted for the Veteran’s right ankle cysts. There is no evidence in the record of any current scarring, residual, or current functional impact attributable to his cysts. Thus, for the entire appeal period, the criteria for a compensable rating have not been met. (CONTINUED ON NEXT PAGE) As the preponderance of the evidence is against this increased rating claim, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.