Citation Nr: 20057166 Decision Date: 08/31/20 Archive Date: 08/31/20 DOCKET NO. 17-42 820 DATE: August 31, 2020 ORDER Entitlement to a 20 percent rating, prior to December 18, 2017, for status post recurrent right ankle sprains, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a rating in excess of 20 percent, from December 18, 2017 to December 3, 2019, for status post recurrent right ankle sprains, is denied. Entitlement to a 20 percent rating, effective from December 3, 2019, for status post recurrent right ankle sprains is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Effective prior to December 18, 2017, the Veteran’s service-connected right ankle disability was manifested by chronic pain, limitation of motion, pain on motion and with weight-bearing, tenderness on palpation, swelling, slight reduction in muscle strength, and functional impairment analogous to marked limitation of motion, but no evidence or allegation of ankylosis or malunion of the tibia or fibula. 2. Effective from December 18, 2017 to December 3, 2019, with regard to the Veteran’s service-connected right ankle disability, there was no evidence of or allegation of ankylosis or malunion of the tibia or fibula. 3. Effective from December 3, 2019, the Veteran’s service-connected right ankle disability has been manifested by chronic pain, limitation of motion, pain on motion and with weight-bearing, tenderness on palpation, swelling, slight reduction in muscle strength, and functional impairment analogous to marked limitation of motion, but no evidence or allegation of ankylosis or malunion of the tibia or fibula. CONCLUSIONS OF LAW 1. Effective prior to December 18, 2017, the criteria for a 20 percent rating, but no higher, for status post recurrent right ankle sprains, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Codes (DCs) 5003-5271. 2. Effective from December 18, 2017 to December 3, 2019, the criteria for a rating in excess of 20 percent, for status post recurrent right ankle sprains, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.71a, DCs 5003-5271. 3. Effective from December 3, 2019, the criteria for a 20 percent rating, but no higher, for status post recurrent right ankle sprains, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.71a, DCs 5003-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1990 to March 1998. In May 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are also appropriate when the factual findings show distinct time periods in which the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 506 (2007). When a reasonable doubt arises regarding the degree of disability, 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. The Veteran's service-connected status post recurrent right ankle sprains have been rated pursuant to DC 5003, which provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Under DC 5271 a 10 percent rating is warranted for moderate limitation of motion. A maximum 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. The Board notes that marked and moderate are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Normal ranges of motion for the ankle are 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. 1. Entitlement to a rating in excess of 10 percent, prior to December 18, 2017, for the Veteran’s service-connected right ankle disability. The Veteran contends that prior to December 18, 2017, a rating in excess of 10 percent is warranted for his service-connected right ankle disability. After review of the record for that period (exclusive of the temporary total rating assigned from May 16, 2017, to August 1, 2017), the Board concludes that a 10 percent rating under DC 5271 does not encompass all aspects of the severity of the service-connected right ankle disability, and that his right ankle disability more closely approximates the criteria for a 20 percent rating. 38 C.F.R. § 4.7. In that regard, on a VA examination in July 2016, the Veteran reported injuring his ankle during basic training and that it continued to get worse. He reported persistent pain, swelling, and decreased range of motion, and that his right ankle rolled easily. He wore a brace most of the time. He reported flare-ups, described as increased pain and not being able to stand or walk for very long. He had trouble climbing stairs and walking over uneven terrain. Right ankle range of motion was limited to 7 degrees on dorsiflexion and 12 degrees on plantar flexion, with pain on motion. There was tenderness on palpation of the ankle, swelling over the lateral malleolus, and pain with eversion of the ankle. It was also noted that the Veteran had persistent pain and swelling of the right ankle, and pain with weight-bearing. Repetitive use testing was performed with additional loss of range of motion, described as dorsiflexion limited to 9 degrees and plantar flexion to 5 degrees. The examiner opined that functional ability was limited with repeated use and on flare-ups due to pain, weakness, and lack of endurance. Additional factors contributing to his right ankle disability included swelling, deformity, and disturbance of locomotion. The Veteran stated he could only stand or walk on the right ankle for 5 to 10 minutes, and wore a brace all the time. There was a slight reduction of muscle strength and atrophy was noted in the right lower extremity. Neither ankle instability nor dislocation was suspected. It was noted that his right ankle impacted his ability to work, as he had difficulty with stairs, walking and standing for very long, walking over uneven terrain, and doing any lifting. VA treatment records show that in August 2016, the Veteran was seen for follow-up for right ankle pain and instability. He had rolled the ankle in February on a flight of stairs, and since then had pain and repeat episodes of rolling his ankle. He had been wearing a brace but wanted other options. Examination revealed pain with dorsiflexion and plantar flexion of the ankle, no effusion, and range of motion was noted to be within functional limits. The assessment was right ankle instability. In October 2016, he was seen for right ankle instability and pain. Examination revealed moderate calf atrophy, tenderness to palpation, reduced strength on dorsiflexion and plantar flexion, but no gross instability of ankle was noted on varus stress and anterior drawer testing. On a VA examination in April 2017, the Veteran reported his right ankle condition had worsened, and his ankle was unstable and hurt if he stood too long. He also had swelling and used a cane to prevent falling. He reported having flare-ups, involving extreme pain and swelling. Right ankle range of motion was limited to 10 degrees on dorsiflexion and 15 degrees on plantar flexion, with pain on motion. He had pain with weight-bearing on the right ankle. There was tenderness on palpation of the ankle. After repetitive use testing there was no additional loss of function or range of motion. The examiner noted that pain, weakness, fatigability, and lack of endurance, significantly limited functional ability with repeated use and during flare-ups. Additional factors contributing to his right ankle disability included weakened movement, disturbance of locomotion, instability of station, disturbance of locomotion, and interference with standing. There was a slight reduction of strength in the right ankle, but no atrophy was noted. It was noted that neither ankle instability nor dislocation of the right ankle was suspected. VA treatment records show that in August 2017, the Veteran was seen for a post-operative visit after right ankle revision arthroscopy, and reported he thought his ankle was better. He was able to dorsiflex and plantar flex, and there was slight swelling. In September 2017, the Veteran reported ankle soreness and swelling from wearing a lace up brace. In October 2017, he reported no increase in pain after exercising, and reported his ankle felt like it was getting stronger and range of motion was improving. He reported an occasional ache in the right ankle, but denied pain before and after physical therapy. Active range of motion was noted to be 20 degrees on dorsiflexion and 32 on plantar flexion. It was noted that he demonstrated improved right ankle range of motion and strength, improved tolerance with standing, and fair balance on an unlevel surface. As noted above, the Board finds the Veteran's service-connected right ankle disability more closely approximates the criteria for a 20 percent rating for marked limitation of motion under DC 5271, for the period in question, as it was primarily manifested by chronic pain, limitation of motion, pain on motion and with weight-bearing, tenderness on palpation, swelling, slight reduction in muscle strength, and difficulties with walking, standing, climbing stairs, and needing to wear a brace and use a cane. Additionally, the VA examiners in 2016 and 2017 opined that the Veteran’s functional ability was limited with repeated use and on flare-ups due to pain, weakness, fatigability, and lack of endurance. Further, on the VA examination in July 2016, after the Veteran performed repetitive use testing his right ankle range of motion was further limited to 5 degrees on plantar flexion. Although improvement was shown in the Veteran’s right ankle after an operation in May 2017, in considering the functional limitations of the Veteran’s right ankle prior to December 18, 2017, and resolving all reasonable doubt in his favor, the Board finds that the criteria for a 20 percent rating under DC 5271, for marked limitation of motion, have been approximated. 38 C.F.R. §§ 4.7, 4.40, 4.45. Moreover, a rating in excess of 20 percent is not warranted under other applicable diagnostic codes, as the record has not shown any ankylosis, or malunion/nonunion of the tibia/fibula. 38 C.F.R. § 4.71a, DCs 5262, 5270. 2. Entitlement to a rating in excess of 20 percent, from December 18, 2017 to December 3, 2019, for the Veteran’s service-connected right ankle disability. The Veteran contends that from December 18, 2017 to December 3, 2019, a rating in excess of 20 percent is warranted for his service-connected right ankle disability. After review of the record for that period (exclusive of the temporary total rating assigned from August 15, 2018, to October 1, 2018), the Board concludes that a rating in excess of 20 percent rating is not warranted for the Veteran's service-connected right ankle disability. In that regard, on a VA examination in December 2017, the Veteran reported achy right ankle pain with walking, and decreased stability in the right ankle. He reported having flare-ups, and described that the right ankle was worse with walking on it or with weight bearing, and better with ice and elevation. He described the functional impairment as having to ice and elevate his ankle. Right ankle range of motion was limited to 15 degrees on dorsiflexion and 5 degrees on plantar flexion, with pain on motion. There was tenderness on palpation of the ankle. He was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner noted that it was not possible, without resort to speculation, to opine whether functional ability was limited with repeated use or during flare-ups. There was a slight reduction of strength in the right ankle, assessed as 4/5, but no atrophy was noted. It was noted that ankle instability or dislocation was suspected, but joint stability testing revealed no laxity. It was also noted that his right ankle impacted his ability to work, because standing for a long period of time aggravated his right ankle, and he could not pick up a lot of weight. Private treatment records from Ortho Central show that in February 2018, the Veteran was seen for a right ankle evaluation, and he reported pain and instability. He reported that since surgery in June 2017, he had persistent discomfort and pain with weight-bearing activities; he also had significant discomfort with climbing stairs. Examination revealed slightly reduced motor strength on right ankle motion, swelling, and tenderness to palpation, and he was unable to perform a toe heel raise. No instability was noted on stability testing, and range of motion was well maintained, with minimal pain. The assessment was right ankle and hindfoot synovitis and tendonitis. In April 2018, he received a right posterior tibial injection for right medial ankle pain. In June 2018, he reported limited benefit from the injection that was short lived. He reported pain over the medial aspect of the ankle and posterior ankle joint, but did not report instability. Examination revealed mild swelling, tenderness, and full strength on plantar flexion and dorsiflexion. He had not seen significant consistent benefit from conservative management, and surgical options were discussed. In October 2018, the Veteran was seen for a post-operative visit. He had minimal swelling and no tenderness over the ankle joint but some tenderness over the posterior tibial tendon. In November 2019, he was seen for follow-up, and reported moderate pain, but was not having major instability issues. Examination revealed fairly good stability on testing, and some tenderness, and slightly reduced strength with minimal discomfort, and the examiner was able to plantar flex to 20-25 degrees. After reviewing the record, it is concluded that a rating in excess of 20 percent is not warranted for the service-connected right ankle disability, effective from December 18, 2017 to December 3, 2019. The competent evidence of record for this period shows the Veteran's right ankle disability was manifested by no more than marked limited ankle motion, and the maximum schedular rating based on loss of motion was already assigned under DC 5271. Further, because his right ankle disability was assigned the maximum rating based on limitation of motion for this period, the criteria for considering functional loss, are not applicable. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); 38 C.F.R. §§ 4.40, 4.45, 4.59. Considering other potentially applicable diagnostic codes, the Board concludes that a 30 percent rating is not warranted under DC 5262 as there was no showing of malunion of the fibula and tibia. As the competent evidence of record does not show right ankle ankylosis, nor has the Veteran alleged such, a higher rating under DC 5270 is not warranted. DCs 5272 to 5274 are also not applicable as the highest rating under those codes is 20 percent. Accordingly, the Board concludes that the claim for a rating in excess of 20 percent for the service-connected right ankle disability, effective from December 18, 2017 to December 3, 2019, must be denied. 3. Entitlement to a rating in excess of 10 percent, effective from December 3, 2019, for the Veteran’s service-connected right ankle disability. The Veteran contends that effective from December 3, 2019, a rating in excess of 10 percent rating is warranted for his service-connected right ankle disability. After review of the record for that period (exclusive of the temporary total rating assigned from January 15, 2020, to March 1, 2020), the Board concludes that the disability picture for Veteran's service-connected right ankle disability more closely approximates the criteria for a 20 percent rating. 38 C.F.R. § 4.7. In that regard, on a VA examination in December 2019, the Veteran reported that for the last 18 months his ankle condition had worsened, and that he had constant dull pain and stiffness, and used a cane occasionally and a brace regularly. He reported daily flare-ups when walking, sitting, or standing for a prolonged period of time, and lasting for 2 to 3 hours. Right ankle range of motion was limited to 10 degrees on dorsiflexion and 10 degrees on plantar flexion, with pain on plantar flexion that caused functional loss. There was no pain with weight bearing. He was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner noted that there was no basis to opine as to additional losses of function or motion with repeated use over time or during a flare-up. There was full strength in the right ankle, with no atrophy noted. There was no joint instability or dislocation noted on testing. It was also noted that his right ankle impacted his ability to work, because of increasing pain, stiffness, limited range of motion, and limits on prolonged walking. Private treatment records from Ortho Central show that in December 2019, an examination of the Veteran’s right ankle revealed no gross instability on varus stress or anterior drawer testing, mild swelling, tenderness to palpation along the posterior tibial tendon, 4 out of 5 inversion strength of the hind foot with some pain, and fairly good range of motion with 10 degrees of eversion and 15 of inversion without significant pain. The Veteran was able to dorsiflex the ankle to 3-5 inches past neutral and plantar flex to 25-30 degrees, with some discomfort. On a VA examination in March 2020, the Veteran reported severe flare-ups, occurring 4 to 5 times a week, and that he was not able to walk or stand for several minutes to hours. He reported that flare-ups lasted 3 to 4 hours, and were precipitated by standing too long, lifting, and rolling the ankle just after walking at the start of the day, and were alleviated by ice and elevation. Range of motion was limited to 10 degrees on dorsiflexion and 20 degrees on plantar flexion, with pain, and pain with weight bearing. He was able to perform repetitive use testing with no additional loss of function or range of motion. It was noted that pain, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time and during a flare-up, which was described in terms of loss of motion as dorsiflexion limited to 5 degrees and plantar flexion limited to 15 degrees. Additional factors contributing to the Veteran’s right ankle disability included weakened movement, disturbance of locomotion, and interference with sitting and standing. There was a slight reduction in right ankle muscle strength, but no atrophy was noted. There was no joint instability or dislocation on joint stability testing. He used a cane every day for walking and support, and a lace up right ankle brace for stability and support. It was noted that his ankles impacted his ability to work, as he could not walk more than one city block without resting, and he could not squat. There was objective evidence of pain on passive range of motion testing and on non-weight bearing testing of the right ankle. In May 2020, the Veteran testified at a hearing before the Board that he had difficulty standing for 5-6 minutes, problems walking 15 steps, and could not walk on uneven terrain. He described the ache in his right ankle on the pain scale as level 6 out of 10. He used an ankle brace all the time. He was able to go upstairs, but his ankle buckled when going down. He had trouble bending down to pick things up. He testified that ice and elevation helped his right ankle symptoms, and he was currently treating with physical therapy, pain medication, a muscle relaxer, and topical cream As noted above, the Veteran's service-connected right ankle disability more closely approximates the criteria for a 20 percent rating for marked limitation of motion under DC 5271, for the period in question, as it was primarily manifested by chronic pain, limitation of motion, pain on motion and with weight-bearing, tenderness on palpation, swelling, slight reduction in muscle strength, and difficulties with walking, standing, climbing stairs, and needing to wear a brace and use a cane. Additionally, the VA examiner in 2020 opined that the Veteran’s functional ability was limited in that he could not walk more than one city block without needing to sit and get weight off his ankles. He also could not squat using his ankles. In considering the functional limitations of the Veteran’s right ankle from December 3, 2019, and resolving all reasonable doubt in his favor, the Board finds that the criteria for a 20 percent rating under DC 5271, for marked limitation of motion, have been approximated. 38 C.F.R. §§ 4.7, 4.40, 4.45. Moreover, a rating in excess of 20 percent is not warranted under other applicable diagnostic codes, as the record has not shown any ankylosis, or malunion/nonunion of the tibia/fibula. 38 C.F.R. § 4.71a, DCs 5262, 5270. The Board acknowledges that at the May 2020 Board hearing, the Veteran, through his representative, requested separate ratings for impairment of dorsiflexion and for impairment of plantar flexion of the ankle. The representative reported that the rating schedule for right ankle impairments was similar to that for the shoulder, stating that the rating schedule for the shoulder provides a generic declaration that limitation of motion is the basis for assignment of a disability rating, but does not identify or limit which plane of movement is to be considered. He also noted that the illustrative plate (in the regulations) for both ankles and shoulder listed more than one direction of movement. He argued that both right ankle dorsiflexion and plantar flexion were limited to more than half of the potential range, and that each were therefore shown to have marked limitation. He also cited Mariano v. Principi, 17 Vet. App. 305 (2003), claiming that this case supported the assignment of separate ratings for both plantar flexion and dorsiflexion impairments. After considering the Veteran’s contentions as well as the Mariano case, the Board concludes that there is no basis to assign separate ratings for both limited dorsiflexion and limited plant flexion of the right ankle. In that regard, the Board notes that the Mariano case held that in assessing the severity of limitation of shoulder motion, it was necessary to consider both forward flexion and abduction, but that only a single disability rating may be assigned under DC 5201 as that code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm. See Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). Additionally, within a single diagnostic code, a claimant is not entitled to more than one rating for a given disability unless the diagnostic code expressly provides otherwise. See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). Finally, at the hearing, the representative also contended that the Veteran requested “the maximum benefit allowed by law and regulation, including but not limited to an extraschedular rating based on the exceptional and unusual symptoms and severity of the service-connected right ankle disability”, and cited to the case Yancy v. McDonald, 27 Vet. App, stating that in this case, the “exceptional disability picture obviously includes the fact that he has undergone repeated surgeries for the service-connected right ankle”. The Board acknowledges that in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. However, the Board may not assign an extraschedular rating in the first instance but must adjudicate whether to refer a case for extraschedular evaluation. Consideration of whether to refer requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). In regard to the first element, a comparison of the Veteran's right ankle symptoms and associated functional impairment does not show that the rating criteria are inadequate to rate his disability picture at any point during the appeal period. His right ankle disability has been rated under DC 5271. The record shows that he has complaints and findings of pain, tenderness, reduced muscle strength, weakness, lack of endurance, and fatigability, as well as flare-ups, all of which impacts his ability to perform tasks such as walking or standing for long periods, using stairs, and squatting. DC 5271 contemplates pain and limited motion, including from reduced muscle strength, weakness, lack of endurance, fatigability, and flare-ups. The Veteran's right ankle manifestations are therefore reasonably contemplated by DC 5271. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.