Citation Nr: 21001977 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 08-34 193 DATE: January 12, 2021 ORDER A rating in excess of 20 percent for right ankle disability is denied. A rating in excess of 20 percent for left ankle disability is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right ankle symptoms more nearly approximate marked limitation of motion, with no evidence of ankylosis of the right ankle. 2. Throughout the appeal period, the Veteran's left ankle symptoms more nearly approximate marked limitation of motion, with no evidence of ankylosis of the left ankle. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5271. 2. The criteria for a rating in excess of 20 percent for left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1978 to May 1979. The Board remanded these issues in March 2015 for additional development, to include the issuance of an SOC. In March 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. At the March 2019 Travel Board hearing, the Veteran testified that his right ankle and left ankle disabilities had worsened. In July 2019, the Board remanded these issues for additional development, to include a VA examination to determine the current severity of the Veteran’s right ankle and left ankle disabilities. See July 2019 BVA Decision. In an August 2020 rating decision, the RO granted an increased evaluation of 20 percent for the Veteran’s right ankle and left ankle disabilities, effective April 25, 2013, the date the claim was received. As a final preliminary matter, the Board observes that the Veteran is currently gainfully employed and thus the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is not before the Board. Cf. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating A rating in excess of 20 percent for right ankle disability and left ankle disability. The Veteran's right ankle disability and left ankle disability are each assigned a 20 percent rating under Diagnostic Code 5271. Under Diagnostic Code 5271, a maximum 20 percent rating is warranted for marked limited motion of the ankle. The Veteran is in receipt of the highest schedular rating for limited motion of the ankle and the Board does not find a basis to award a higher rating. The Board has considered whether any other diagnostic codes related to disabilities of the ankle would provide for a higher disability rating. Under Diagnostic Code 5270, a 40 percent evaluation may be assigned for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. A 30 percent rating is assignable for ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. As previously noted, the Veteran testified that his right and left ankle disabilities had worsened since his prior June 2015 VA examination. The Veteran was afforded a VA examination in August 2020. The physical examination revealed dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 10 degrees. The Veteran described functional loss as pain, fatigue, lack of endurance and incoordination. The Veteran was able to perform repetitive use testing with at least three repetitions. His range of motion after three repetitions revealed dorsiflexion from 0 to degrees and plantar flexion from 0 to 0 degrees. The examiner noted the Veteran had less movement than normal due to ankylosis, adhesions, etc. Additionally, she noted the Veteran experienced weakened movement due to muscle or peripheral nerve injury, etc. and swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. See August 2020 Ankle Conditions DBQ. The Veteran reported flare-ups described as sharper pain. The examiner noted right and left instability or dislocation suspected. The Veteran reported the constant use of a brace and cane. The Veteran estimated he called out of work 3 times for a period of 2 or 3 days due to ankle pain and disability. Although his job is largely sedentary, he is still required to some standing and walking, and there are days he is able to do that. Id. The examiner did not provide a response regarding ankylosis. The Veteran was afforded an additional VA examination in October 2020. There the Veteran reported difficulty standing still in lines for more than 2-3 minutes. He described using several types of ankle braces for various reasons for added stability. He described difficulty walking more than 150-200 feet without increased ankle and foot pain. He stated that he is no longer able to wear dress shoes because of braces and he experiences flare-ups occur about twice a week from increased activity or just randomly. His pain increases and becomes “pulsative” and he has severe pain with weight bearing. He reported that sometimes severe pain occurs when first getting up out of bed in the mornings for work. He reports, his pain gets better after sitting for several hours but ankles are very stiff. He takes some other the counter pain medication when needed. See October 2020 Ankle Conditions DBQ. The October 2020 VA Examiner concluded that the Veteran did not have ankylosis in the right or left ankle. The physical examination revealed dorsiflexion between 0 and 5 degrees and plantar flexion from 0 to 30 degree. The functional loss on the examination resulted in pain, incoordination and lack of endurance. There was no evidence of atrophy. The Veteran reported the constant use of a cane and brace, and that his ankle disabilities impacted his ability to work as he missed 3 days of work in August 2020 due to severe ankle and foot pain. Additionally, the Veteran reported the use of over the counter medication and gel, as needed. Treatment records and VA examinations do not contain any clinical findings of ankylosis. See September 2012-August 2012 treatment records; see also; February 2014 Ankle DBQ; June 2015 Ankle DBQs; August 2020 Ankle DBQ; October 2020 Ankle DBQ. The Board notes the Veteran's VA examinations were not conducted during a period of flare-up, however given his competent report of his symptoms, resolving all reasonable doubt in his favor, the Board finds the Veteran's disability picture more nearly approximates a 20 percent rating. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The evidence does not support the Veteran's ankle disabilities produced ankylosis during the appeal period. The Board acknowledges the August 2020 VA examiner’s range of motion findings; however, the Board notes, the VA examiner did not provide a response regarding ankylosis. Further two months later, the October 2020 VA examiner indicated the Veteran has mobility and does not have ankylosis. Therefore, the evidence indicates the Veteran maintained some motion of the ankle. A 20 percent rating is the maximum rating for limitation of motion of the ankle. A higher rating due to additional functional loss under 38 C.F.R. §§ 4.40 and 4.45 is not available. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. §§ 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). Accordingly, a rating in excess of 20 percent for right ankle disability or left ankle disability is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jacquelynn M. Jordan, 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.