Citation Nr: 21001260 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 94-21 814A DATE: January 7, 2021 ORDER An initial rating of 30 percent for left ankle impingement syndrome with osteochondral defect of the talar dome with degenerative changes (left ankle disability), from October 1, 1994, to June 17, 1999, is granted. A rating of 40 percent for left ankle disability since December 1, 1999, exclusive of periods of temporary total disability for convalescence under 38 C.F.R. § 4.30, is granted. FINDINGS OF FACT 1. The competent and probative evidence shows that the level of impairment demonstrated by the Veteran’s left foot disability is more nearly approximated by severe level of impairment from October 1, 1994, to June 17, 1999. 2. The competent and probative evidence shows that the level of impairment demonstrated by the Veteran’s left foot disability is more nearly approximated by loss of use of foot since December 1, 1999, exclusive of periods of temporary total disability for convalescence. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent, but no higher, for a left foot disability from October 1, 1994, to June 17, 1999, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.63, 4.71a, DC 5283. 2. The criteria for a rating of 40 percent for a left foot disability since December 1, 1999, exclusive of periods of temporary total disability for convalescence, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.63, 4.71a, DC 5283. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to August 1974, from September 1974 to February 1978, and active duty for special work in the Army National Guard from August 1991 to September 1994. These matters are before the Board of Veterans’ Appeals (Board) on appeal from January 1993, February 1996, April 2001, and October 2008 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in August 2019, at which time the Board remanded the matters for further development. As the requested development has been sufficiently completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Procedurally, the Board notes that the Veteran had previously withdrawn his claim of entitlement to a total disability rating based on individual unemployability (TDIU). 05/24/2016, VA 21-4138; 07/26/2019, Appellate Brief. As such, the Board finds that, regarding this issue, there remains no allegations of errors of fact or law for appellate consideration since the withdrawal of the issue was an effective one. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to a TDIU. 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. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 1. Entitlement to an initial rating in excess of 10 percent for left ankle disability from October 1, 1994, to June 17, 1999. 2. Entitlement to a rating in excess of 20 percent for left ankle disability since December 1, 1999, exclusive of periods of temporary total disability for convalescence. The Veteran contends that he is entitled an initial rating in excess of 10 percent from October 1, 1994, to June 17, 1999, and in excess of 20 percent since December 1, 1999, exclusive of periods of temporary total disability for convalescence, for a left foot disability, evaluated under Diagnostic Code 5283. Under Diagnostic Code 5283, moderate malunion or nonunion of the tarsal or metatarsal bones warrants a 10 percent rating. Moderately severe malunion or nonunion of the tarsal or metatarsal bones warrants a 20 percent rating. A 30 percent rating is assigned for severe malunion or nonunion of the tarsal or metatarsal bones. A 40 percent rating is assigned for actual loss of use of foot. 38 C.F.R. § 4.71a, DC 5283. Additionally, Diagnostic Code 5284 applies to non-specified feet disabilities and provides for a 10 percent rating for a moderate injury, a 20 percent rating for a moderately severe injury, and a 30 percent rating for a severe injury. A 40 percent rating is assigned for actual loss of use of foot. 38 C.F.R. § 4.71a, DC 5284. The Board notes that the Veteran is separately rated for left plantar fasciitis, pes planus, with first metatarsophalangeal joint osteoarthritis under Diagnostic Code 5276 (pes planus). See 03/06/2014, Rating Decision; see also 03/06/2014, SSOC. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a rating of 30 percent, but no higher, for a left ankle disability is warranted prior to from October 1, 1994, to June 17, 1999, and that a rating 40 percent for a left ankle disability is warranted since December 1, 1999, exclusive of periods of temporary total disability for convalescence. An October 1998 VA examination noted an in-service diagnosis of left heel fracture. The clinician indicated that, due to the left ankle disability, the Veteran is unable to run, has difficulty going up and down stairs, cannot walk for prolonged periods of time, and can sprain his left ankle easily. It interfered with his job. Additionally, the Veteran was in constant pain in the left ankle, which is exacerbated by prolonged walking, and that the Veteran requires medication for the pain. 10/16/1998, C&P Exam. An October 1999 private medical opinion indicated that the Veteran had re-injured his left ankle in September 1999 due to a workplace incident. There was an apparent suggestion of an acute ganglion cyst about the left ankle associated with the severe ankle sprain. After treatment, the Veteran continued to experience lateral sided pain and an injection of Celestone, Lidocaine and Marcaine did not alleviate his symptoms. Upon examination, the Veteran was unable to perform a single heel rase on the left side due to pain. Ambulation showed evidence of a mild limp. A February 2000 VA examination noted an in-service diagnosis of non-union of the left heel, and that the Veteran had since had surgery for a ganglion cyst and also had been diagnosed with a malunion of the left ankle. The examiner opined that the pain, difficulty, and instability of the left ankle is due to the Veteran’s in-service injury. And, the Veteran’s calcaneal fractures put a strain on the ankle joint causing arthritic changes. 02/17/2000, VA Examination. An August 2000 private orthopedic evaluation was performed in relation to the Veteran’s claim for pension benefits from the State of New Jersey. Upon examination, the clinician noted pain on movement of the ankle, as well as pain on applied pressure. Additionally, the clinician remarked that the Veteran had a significant and permanent impairment of the left ankle due to pain, instability, and restriction of motion that impeded his ability to sustain employment. 11/03/2014, Medical Treatment Record – Non-Government Facility. A March 2001 VA examiner opined that the September 1999 re-injury further aggravated the Veteran’s left ankle. And, the Veteran’s in-service left ankle injury is the source of pain and instability. 03/28/2001, VA Examination. A January 2005 private medical report noted a diagnosis of left talus osteochondral defect and that the Veteran had underwent a surgical procedure to treat the left ankle disability. Further, the Veteran had reported that his left ankle had worsened and that he experienced pain when standing, walking, or sitting for prolonged periods of time. The Veteran indicated that his left ankle condition had been markedly uncomfortable and progressively worsening. 06/24/2003, Medical Treatment Record – Non-Government Facility. A September 2006 VA examination indicated that the Veteran’s left ankle disability manifested in symptoms of pain, swelling, heat, redness, stiffness, fatiguability, weakness, and lack of endurance while standing and walking. Additionally, the Veteran reported flareups occurring weekly or more often, with the duration of more than two weeks. The pain due to flareups impacted between 80 and 90 percent of the Veteran’s daily activity. The Veteran was only able to stand for 15 to 30 minutes and unable to walk more than a few yards. Additionally, the Veteran had poor gait and avoided putting any pressure or weight on his left foot. The examiner indicated that the left ankle disability had a severe impact on the Veteran’s activities, to include chores, shopping, exercise, sports, and recreation. Additionally, the examiner described the functional limitation due to the disability as severe, and that the left ankle disability caused severe pain. 09/27/2006, VA Examination. A February 2014 VA examination noted an additional diagnosis of left ankle degenerative joint disease. The examiner indicated that the Veteran experienced functional loss of the left ankle due to pain on movement, disturbance of locomotion, interferences with sitting, standing and weightbearing, and pain on palpitation. Additionally, the Veteran made regular use of assistive devices as a normal mode of locomotion, to include regular use of a brace and cane, as well as occasional use of a scooter. 02/20/2014, CAPRI. An August 2019 Board decision remanded the claims for increased ratings for a left ankle disability and directed the Agency of Original Jurisdiction to schedule the Veteran for a VA examination to assess the current severity of his left ankle disability, to include testing of the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing, in compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Additionally, the examiner was directed to elicit information regarding the severity, frequency, and duration of any flareups, as well as the degree of functional loss during flareups. 08/15/2019, BVA Decision. A December 2019 VA examination noted diagnoses of impingement, osteoarthritis, and sprain of the left ankle. The examiner described the localized tenderness and pain of the Veteran’s left ankle disability as moderate to severe. Additional contributing factors to the disability included weakened movement, instability of station, disturbance of locomotion, and interference with sitting and standing. Specifically, the Veteran experiences instability within his ankle, causing numbness of the foot and toes, as well as pain that interferes with the Veteran’s ability to walk or sit. The examiner noted objective evidence of pain on passive range of motion testing of the left ankle, as well as objective evidence of pain on non-weight bearing testing of the left ankle. Additionally, the Veteran experienced functional loss during flareups due to pain and weakness. However, the examiner did not elicit information regarding the severity, frequency, and duration of any flareups. The examiner remarked on the extent of functional impairment due to the left ankle disability, noting that the Veteran is unable to ambulate without a scooter and experiences increased intensity and frequency of pain. 01/02/2020, C&P Exam. The Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s left ankle malunion or nonunion of the tarsal or metatarsal bones manifested in a severe disability picture from October 1, 1994, to June 17, 1999. See 38 C.F.R. § 4.71a, DC 5283. The Board places considerable probative weight on the October 1998 VA examination, which noted that the Veteran was unable to run, had difficulty going up and down stairs, and could not walk for prolonged periods of time. Additionally, the Veteran’s was in constant pain in the left ankle, which was exacerbated by ambulation. Moreover, the examiner noted that the Veteran could easily sprain his left ankle, which is corroborated by the Veteran’s medical history of frequently aggravating his left ankle disability. In particular, the Board acknowledges and finds support for this rating in the reports of Veteran’s constant pain, severe limitations in walking and standing, as well as imbalance and instability causing the Veteran to frequently exacerbate the severity of his ankle disability. The Board finds that a higher rating is not warranted under Diagnostic Code 5283 from October 1, 1994, to June 17, 1999, as the weight of the competent and probative evidence is against finding actual loss of use of foot, as the Veteran had limited ability to ambulate. In this regard, the Board looks to 38 C.F.R. § 4.63 (Loss of use of hand or foot) to provide a little guidance. It states: Loss of use of a hand or a foot, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the hand or foot, . . . or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. As noted above, the 1998 VA examination shows difficulty going up and down stairs and could not walk for prolonged periods of time. Additionally, the October 1999 private medical report notes that ambulation showed evidence of a mild limp and difficulty with prolonged walking. While these medical reports show severe problems with the left ankle (as evidenced by the Board’s finding that a higher, 30 percent, rating is warranted prior to December 1, 1999), they do not tend to show no effective function as, for example, the Veteran could ambulate with a limp. Since December 1, 1999, exclusive of periods of temporary total disability for convalescence, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s left ankle malunion or nonunion of the tarsal or metatarsal bones manifested in an actual loss of use of foot. See 38 C.F.R. § 4.63; 38 C.F.R. § 4.71a, DC 5283. The Board finds the February 2000, March 2001, September 2006, February 2014, and December 2019 VA examinations, as well as the October 1999, August 2000, and January 2005 private medical evaluations to be competent, credible, and highly probative, as they are supported by in-person examinations, medical expertise, adequate findings, and sufficient rationales. Specifically, the February 2000 VA examination noted pain, difficulty, and instability of the left ankle, as well as arthritic changes, after surgical treatment. The January 2005 private medical report indicated that the Veteran experienced pain when standing, walking, or sitting. The September 2006 VA examination noted flareups occurring weekly or more often, with the duration of more than two weeks. The pain due to flareups impacted between 80 and 90 percent of the Veteran’s daily activity. The Veteran avoided putting any pressure or weight on his left foot, was only able to stand for 15 to 30 minutes and unable to walk more than a few yards due to severe pain. The February 2014 VA examination noted functional loss due to disturbance of locomotion, and that the Veteran made regular use of assistive devices as a normal mode of locomotion. And, the December 2019 VA examination noted objective evidence of pain on passive range of motion testing and on non-weight bearing testing of the left ankle. Further, the examiner remarked that the Veteran is unable to ambulate without a scooter and experiences increased intensity and frequency of pain of the left ankle. In particular, the Board acknowledges and finds support for this rating in the reports of Veteran’s inability to place any weight on his left ankle due to severe and constant pain, requiring the use of assistive devices to ambulate. As such, the Board finds that the probative medical and other evidence is commensurate with a 40 percent rating, which is the maximum rating under Diagnostic Code 5283. The Board notes that the Veteran is not entitled to separate ratings for the left ankle symptoms under Diagnostic Codes 5283 and 5284, as that would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262. All possibly applicable diagnostic codes have been considered in compliance with Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), but the Veteran could not receive a higher and/or additional evaluation for his left foot disability based on the evidence. See 38 C.F.R. § 4.71a. The Board notes that the benefit of the doubt has been applied, where applicable. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.