Citation Nr: 20053213 Decision Date: 08/11/20 Archive Date: 08/11/20 DOCKET NO. 14-38 815 DATE: August 11, 2020 ORDER Entitlement to a rating in excess of 20 percent for right ankle fracture status post open reduction (right ankle condition) is denied. FINDING OF FACT The Veteran’s right ankle strain has not been manifested by malunion of the os calcis or astragalus, an astragalectomy, or ankylosis. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for right ankle condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, DC 527. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to November 1970. This matter comes before the Board of Veterans Appeals (Board) from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that this matter has been remanded multiple times with the most recent being an October 2019 Board decision. The Board finds that there has been substantial compliance with its remand directives for the right ankle issue. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 20 percent for right ankle fracture status post open reduction (right ankle condition) The Veteran contends that his right ankle disability warrants a higher evaluation. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. 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. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the VA is required to apply the provisions of sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (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, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). DC 5271 provides a 10 percent evaluation for “moderate” limitation of motion of the ankle and a 20 percent evaluation for “marked” limitation of motion of the ankle. Normal ranges of motion of the ankle are as follows: Dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The terms “moderate” and “marked” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran’s right ankle condition has been rated at 20 percent for the entire period on appeal. This is the maximum rating allowed under DC 5271. The Veteran underwent a December 2019 VA examination for his right ankle. The VA examiner noted no instability, ankylosis, or malunion concerning his right ankle. The Board also acknowledges the Veteran’s sincerely held belief that his right ankle symptoms are more severe than currently contemplated. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology and resulting functional difficulties, 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). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. Further, the Veteran has not raised any other issues nor have any other issues been reasonably raised by the record, in regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). A higher rating is not warranted for the Veteran’s right ankle strain since the evidence does not demonstrate malunion of the os calcis or astragalus, an astragalectomy, or ankylosis of either ankle pursuant to DCs 5270 and 5272-5274. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board, R. Smith Department of Veterans Affairs 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.