Citation Nr: 20058652 Decision Date: 09/04/20 Archive Date: 09/04/20 DOCKET NO. 13-06 389 DATE: September 4, 2020 ORDERED An initial disability rating of 20 percent prior to May 3, 2018 for service-connected right Achilles tendonitis (right ankle disability) is granted. A rating in excess of 20 percent for service-connected a right ankle disability is denied. FINDING OF FACT The Veteran’s right ankle disability results in marked limitation of motion; however, ankylosis, malunion, or astragalectomy have not been shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent for a right ankle disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 2. The criteria for a rating in excess of 20 percent for a right ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5270-74. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from September 1967 to April 1969. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). 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.”). A May 2016 rating decision granted the Veteran service connection for his right ankle disability and assigned an initial rating of 10 percent effective November 14, 2011, the date his service connection claim was received by VA. A May 2018 rating decision granted an increased rating of 20 percent effective May 3, 2018. The Veteran asserts that he is entitled to higher ratings because he experiences pain if he walks without wearing cowboy boots. The Veteran’s right ankle disability is rated under Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. The Board notes that words such as “moderate” and “marked” 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 ankle dorsiflexion is from 0 to 20 degrees, and normal ankle plantar flexion is from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5270 evaluates ankylosis of the ankle and Diagnostic Code 5272 evaluates ankylosis of the subastragalar or tarsal joint. The record contains no evidence of ankle ankylosis, and the Veteran has not described symptoms that are suggestive of ankylosis. Therefore, these Diagnostic Codes are not applicable and will be discussed no further. Diagnostic Code 5273 evaluates malunion of the os calcis or astragalus. The medical record contains no evidence of malunion of the os calcis or astragalus of the left ankle, and the Veteran has not described symptoms that are suggestive of malunion of os calcis or astragalus of the left ankle. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5274 evaluates astragalectomy, or removal of the talus bone. The medical record contains no evidence of removal of the talus bone, and the Veteran has not described symptoms that are suggestive of malunion of removal of the talus bone. Therefore, this Diagnostic Code is not applicable and will not be discussed further. The Veteran was assigned an initial 10 percent rating. The evidence of record establishes that a higher disability rating is warranted as marked limitation of motion in his right ankle has been shown. In January 2012, the Veteran was afforded a VA examination where he was diagnosed with a right ankle disability. He reported pain after walking about 75 feet and excruciating pain walking further. He reported waring cowboy boots since his active service. In April 2016, the Veteran was afforded a VA examination. On examination, he demonstrated dorsiflexion to 15 degrees, and plantar flexion to 30 degrees. Although pain was noted on examination, the examiner reported that he had no functional loss due to pain, weakness, fatigability, incoordination, or flare-ups. Despite that, the Veteran asserted that he had to wear his cowboy boots at all times, otherwise his pain was 10 out of 10. He stated that the pain was worse on uneven ground, and that he could only walk up to a mile even with boots on. In March 2017, the Veteran was afforded a VA examination. On examination, he demonstrated dorsiflexion to 10 degrees, and plantar flexion to 35 degrees. Repetitive use testing resulted in no additional limitation of motion. The examiner reported no pain on examination, and that he had no functional loss due to pain, weakness, fatigability, or incoordination. However, the Veteran again reported that without cowboy boots, he could only walk up to 30 feet before he experienced pain. In March 2018, the Veteran was afforded a VA examination. On examination, he demonstrated dorsiflexion to 10 degrees, and plantar flexion to 25 degrees. Repetitive use testing resulted in no additional limitation of motion. Pain was noted on examination. The examiner described the functional impact as being unable to stand for long periods of time, carry anything greater than 20 pounds, or unable to walk in any type of shoe other than cowboy boots. Because the rating schedule offers no further guidance on the issue, the Board will rely on Webster’s definitions of the terms used. “Marked” means noticeable, Webster’s II New College Dictionary, 670 (1995). “Moderate” means of average or medium quantity. Id. at 704. Having reviewed the evidence of record, the Board concludes that the Veteran's right ankle disability findings are consistent with "marked" limitation of motion prior to May 3, 2018. A finding of "marked" limitation is appropriate as the Veteran retained less than half of limitation of motion at the March 2017 and March 2018 VA examinations. None of the VA examinations during this period adequately addressed the Veteran’s lay statements, particularly regarding flare-ups. The Veteran has consistently reported throughout the entire period on appeal that he has had to wear cowboy boots at all times, otherwise it was very painful to walk even a short distance. Accordingly, considering the applicability of the benefit of the doubt doctrine, entitlement to an initial disability rating of 20 percent prior to May 3, 2018, for a right ankle disability is granted. As the Veteran is now in receipt of a 20 percent rating under Diagnostic Code 5271, the maximum rating. The only higher ratings available require ankylosis of the ankle under Diagnostic Code 5270. During VA examinations in April 2016, March 2017, March 2018, May 2018, September 2019, February 2020, and July 2020, VA examiners indicated that they found no evidence of ankylosis. The examiners also did not find malunion, or astragalectomy. Having reviewed the evidence of record, the Board concludes that the Veteran's right ankle findings do not show ankylosis, the only higher rating available. In essence, the Veteran is in receipt of the maximum schedular evaluation for the ankle based on limitation of motion, even when functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 is considered. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). The only ratings available are for ankylosis of the ankle. Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). (Continued on the next page)   Accordingly, a schedular rating in excess of 20 percent prior for service-connected right Achilles tendonitis is not warranted. Therefore, the criteria for a 20 percent rating from November 14, 2011, to May 3, 2018, have been met, and the Veteran’s claim is granted. However, the criteria for a rating in excess of 20 percent have not been, and in that regard, the Veteran’s claim is denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.