Citation Nr: 20057413 Decision Date: 08/31/20 Archive Date: 08/31/20 DOCKET NO. 16-60 205 DATE: August 31, 2020 ORDER Entitlement to an initial rating of 20 percent, but no higher, for left ankle tendonitis is granted. FINDING OF FACT The probative evidence of record shows the Veteran’s left ankle disability has manifested to marked limitation. CONCLUSION OF LAW The criteria for an initial rating of 20 percent, but no higher, for left ankle tendonitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 2012 to December 2012, and from March 2014 to April 2014, with additional National Guard service. The claim was brought before the Board in August 2018 and was remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2019). Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when 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). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Further, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Entitlement to Increased Rating: Left Ankle The Veteran’s service-connected left ankle condition is rated as 10 percent disabling under Diagnostic Code (DC) 5271 of the Schedule Ratings for The Ankle. See 38 C.F.R. § 4.71a, DC 5271. Under DC 5271, a 10 percent evaluation is assigned for moderate limitation of motion and a 20 percent evaluation is assigned for marked limitation of motion. Id. While the schedule of ratings does not provide any information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, a VBA guidance document states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA guidance document. In June 2016, the Veteran was provided a VA examination. The Veteran reported flare-ups that cause her to stop ambulation and rest with medication until pain improves. The Veteran did report functional loss or impairment in not being able to walk or do household chores as before. The Veteran’s range of motion (ROM) was dorsiflexion to 10 degrees and plantar flexion to 25 degrees. ROM itself did contribute to functional loss by limiting heel to toe progression during ambulation. Pain noted on examination also caused functional loss. There was evidence of pain with weight bearing and objective evidence of pain at the lateral malleolus and Achilles tendon. There was no objective evidence of crepitus. The Veteran was able to perform repetitive testing and there was no additional loss of function or ROM after repetitions. The examiner noted that the examination was consistent with the Veteran’s statements describing functional loss with repetitive use over and during flare-ups. The examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or repetitive use over time without resorting to mere speculation. The examiner explained that all musculoskeletal disorders present in an individual could cause functional limitations during repetitive use over time and flare-ups; however, to describe a functional limitation in terms of severity or significant and non-significant based on a possible future event would be mere speculation. The examiner noted additional factors attributing to the disability included limited ambulation due to pain. There was reduction in muscle strength that was entirely due to her claimed condition. There was no muscle atrophy or ankylosis. The Veteran did have ankle instability or dislocation suspected. In June 2017, the Veteran was provided another VA examination. The Veteran reported severe left ankle pain and swelling. The Veteran reported severe flare-ups with pain and functional loss due to difficulty with prolonged walking and being unable to run. The Veteran’s ROM was dorsiflexion to 15 degrees and plantar flexion to 30 degrees. ROM itself did contribute to functional loss due to difficulty running. Pain was exhibited in both dorsiflexion and plantar flexion. There was pain on weight bearing and localized tenderness over the dorsal aspect of the left ankle. There was evidence of crepitus. The Veteran was able to perform repetitive testing without additional loss of function or motion and the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. The examiner noted that pain did significantly limit functional ability during flare-ups and with repeated use over time. However, the examiner found that to describe additional limitation due to pain in terms of degrees of ROM would be speculative because the test would have to be conducted during a flare-up and not during regular medical evaluation. An additional factor contributing to the Veteran’s disability was swelling. The Veteran did have reduction in strength. There was no muscle atrophy or ankylosis. There was ankle disability or dislocation suspected. Most recently, the Veteran was provided a VA examination in February 2020. The Veteran reported pain and swelling with limited ROM. She reported pain with flare-ups that occur weekly and last 9 to 10 hours. She reported functional loss in the form of loss of ambulation and standing tolerance. The Veteran’s ROM was dorsiflexion to 5 degrees and plantar flexion to 20 degrees. There was pain noted on examination. The examiner noted that the pain on examination caused functional loss. There was evidence of pain with weight bearing, and localized tenders and/or pain on the lateral collateral ligament. There was no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. Pain, weakness, fatigability or incoordination did not significantly limit the Veteran during flare-ups or with repeated use over time. The Veteran did have reduction in muscle strength due to her condition. There was no muscle atrophy or ankylosis. There was evidence of ankle instability or dislocation suspected and laxity compared to the other side. The Veteran did not have need for assistive devices. The Board notes that VA treatment records show consistent visits through the years for left ankle pain and swelling, as well as a continued need for physical therapy treatment. Upon review of the evidence of record, the Board finds that an initial rating of 20 percent is warranted. Although the Veteran’s ROM has not manifested to less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, the Veteran has consistently been noted as being additionally limited and/or suffering from functional loss due to pain and swelling that has been noted at times as severe, as well as has been noted as limiting her ability to stand and walk for prolonged periods, or run. Moreover, the Veteran has been found to have reduced muscle strength in every examination, as well as having crepitus on her June 2017 examination. She has further consistently been noted as suffering from joint instability and has continued to need physical therapy. Thus, with consideration of DeLuca, the Board finds that the overall severity of the Veteran’s left ankle has risen to the level of marked limitation, and a 20 percent rating, but no higher, is warranted. See 38 C.F.R. § 4.71a, DC 5271; DeLuca at 202. However, the Board finds that a rating in excess of 20 percent is not warranted for any time on appeal. At no point during the pendency of the appeal has the Veteran shown symptoms of ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy, and therefore, consideration under another Diagnostic Code for the ankle is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274. Accordingly, an initial rating of 20 percent, but no higher, for the Veteran’s left ankle disability is warranted. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.