Citation Nr: 21003663 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 12-26 155 DATE: January 22, 2021 ORDER Entitlement to a rating in excess of 10 percent for a left ankle disability is denied. FINDING OF FACT The Veteran’s service-connected left ankle disability is not shown to be manifested by more than moderate limitation of motion; ankylosis, marked limitation of motion, and malunion of os calcis or astragalus are not shown; the Veteran has not undergone an astragalectomy. CONCLUSION OF LAW A rating in excess of 10 percent for the Veteran’s left ankle disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from February 1967 to February 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision. In August 2016, a Travel Board hearing was held before the undersigned; a transcript is in the record. An August 2017 Board decision remanded this matter as well as a claim of service connection for a bilateral hearing loss disability. A June 2018 rating decision granted service connection for a bilateral hearing loss disability. Accordingly, that matter is no longer before the Board. Entitlement to a rating in excess of 10 percent for a left ankle disability is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s residuals of a gunshot wound to the left ankle are rated under Code 5271 (for limitation of ankle motion) which provides for a 10 percent rating for moderate limitation of motion and a 20 [maximum] percent rating for marked limitation. Normal ranges of ankle motion are dorsiflexion 0 to 20 degrees and plantar flexion 0 to 45 degrees. 38 C.F.R. § 4.71a, and Plate II. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Staged ratings for distinct periods when different levels of severity of the disability are shown are for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Initially, the Board notes that assigning multiple ratings based on the same symptoms or manifestations of a disability constitutes prohibited pyramiding. 38 C.F.R. § 4.14. Separate ratings under different diagnostic codes may be assigned where “none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other... conditions.” 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is currently rated under Code 8520 (rating for paralysis of the sciatic nerve) for left and right lower extremity peripheral neuropathy associated with type 2 diabetes mellitus. The Board acknowledges the Veteran’s contentions made at the August 2016 Travel Board hearing that he experiences numbness in his toes. See Travel Board Hearing pg. 5. However, as noted at the time of the Travel Board hearing, in order for the Veteran’s complaints of toe numbness to be separately rated (as a manifestation of the service connected ankle disability), the evidence would have to show that the toe numbness alleged is a symptom/functional impairment separate and distinct from the service connected sciatic nerve disability (for which a compensable rating, which encompasses sensory changes in the toes, has been assigned). A review of the record found no such evidence. Accordingly, entitlement to a separate compensable (for neurological impairment) rating for toe numbness is not for consideration. On July 2011 ankle conditions DBQ, the chronic ankle strain was diagnosed. The Veteran reported a history or recurrent strains and sprains, and ankle instability. He reported three times per year flare-ups requiring wraps, ice, elevation, and an air cast. Range of motion was normal with plantar flexion to 45 or greater degrees (with painful motion beginning at 5 degrees), plantar dorsiflexion to 20 or greater degrees (with painful motion beginning at 5 degrees). Functional loss was noted as more movement than normal, weakened movement, excess fatigability, pain on movement, instability of station, and interference with sitting, standing, and weight bearing. Pain on palpation was noted; the ankle was not ankylosed. The Veteran reported occasional use of braces, a crutch, and a cane. The examiner opined that the Veteran would be unable to do any active work requiring prolonged standing, but would be able to do a sedentary job. On June 2014 ankle conditions DBQ, chronic ankle strain/sprain was diagnosed. The Veteran reported that his ankle was “about the same” since a 2011 examination. He reported symptoms of instability, and treatment of ibuprofen for pain, use of an Ace wrap, ice and crutches for painful swelling two to three times per year. Range of motion was abnormal with flexion limited to 35 degrees (with objective evidence of painful motion at that point), and dorsiflexion to 10 degrees (with objective evidence of painful motion at that point). Functional loss was noted as less movement than normal, pain on movement, disturbance of locomotion, and slight left limp. The Veteran reported occasional use of a brace and crutch. At the August 2016 Travel Board hearing, the Veteran testified that his ankle “gives out” a couple times a year, requiring use of a cane, crutch, or gauze for support. He testified that he experiences ankle swelling if he is on his feet too much or walks too much. On September 2017 ankle conditions DBQ, the diagnosis was a gunshot wound to the left ankle (1967) with weakness and intermittent pain. The Veteran reported a progression of weakness and intermittent pain over a two to three year period. He denied having flare-ups. Range of motion was normal. Pain was not noted on examination. Localized tenderness and pain with weight bearing were not noted. There was np muscle atrophy or ankylosis. It was noted that the Veteran did not use assistive devices. The Veteran’s left ankle disability is rated 10 percent under Code 5271 for moderate limitation of motion. The record does not show that the ankle is ankylosed, or that there is malunion of os calcis or astragalus, and he has not undergone an astragalectomy. Accordingly, entitlement to a higher rating under Codes 5270, 5272, 5273, and 5274 (for such pathology/impairment) is not for consideration. Code 5271 does not identify what distinguishes “moderate” limitation of motion from “marked” limitation. Accordingly, the distinction is made by comparing normal ranges of ankle motion with the degrees of motion limitation found on examinations. On examinations in July 2011 and September 2017, the Veteran’s range of motion was found to be normal. On June 2014 examination, the range of left ankle motions was abnormal with flexion limited to 35 degrees (10 degrees short of the normal, 45 degrees, range of ankle flexion), and dorsiflexion was to 10 degrees (about half of normal dorsiflexion, to 20 degrees). The Board acknowledges the Veteran’s report of infrequent (two to three times per year) occasions of flare-ups, when there is swelling. Such reports do not identify any distinct periods when limitation of ankle motion was marked (having a clearly defined character). The examiner opined that at such times there may be significant functional limitation due to weakness and lack of endurance. Such occasional additional limitations are encompassed/contemplated by the criteria for the 10 percent rating currently assigned for moderate limitation of ankle motion (considering that 2 of 3 examinations conducted for evaluation purposes found normal range of motion). Overall, the Veteran’s left ankle disability picture most closely approximates a no more than moderate degree of impairment. While range of motion was decreased on examination on examination in June 2014, the increase is not shown to have risen to a level of “marked” limitation, so as to warrant a staged, 20 percent, rating under Code 5271. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.