Citation Nr: 21004048 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-13 992 DATE: January 25, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for residuals of a left ankle fracture with degenerative arthritis, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The residuals of the Veteran’s left ankle fracture, including degenerative arthritis, are currently rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle, and the evidence does not show that the Veteran’s left ankle disability meets the criteria for a separate or higher rating under other diagnostic criteria. 2. The residuals of the Veteran’s left ankle fracture with degenerative arthritis have not manifested in such an exceptional disability picture as to warrant a referral for consideration of an extraschedular rating. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for residuals of a left ankle fracture with degenerative arthritis, to include on an extraschedular basis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1980 to July 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision. The Veteran testified before the undersigned during a May 2019 hearing. This matter was previously before the Board in September 2019, when it was remanded for additional development. Entitlement to an evaluation in excess of 20 percent for residuals of a left ankle fracture with degenerative arthritis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran’s residuals of a left ankle fracture with degenerative arthritis are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5271, for limitation of motion of the ankle. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for arthritis due to trauma following a compound fracture of his left ankle, with the rating assigned based on limitation of motion of the ankle. Traumatic arthritis under Diagnostic Code 5010 is to be rated on the same criteria as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Under Diagnostic Code 5003, degenerative arthritis is to be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Id. In response to contentions raised by the Veteran in his statements of record, the Board notes these regulations effectively prohibit separate ratings for traumatic arthritis and limitation of motion under Diagnostic Codes 5010 and 5271, respectively, as this would be impermissible pyramiding. 38 C.F.R. § 4.14. Under Diagnostic Code 5271, which addresses limitation of motion of the ankle, a maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a. As the Veteran is in receipt of the highest schedular rating for limited motion of the ankle, there is no basis to award a higher rating under these criteria; however, the Board will also consider whether any other diagnostic codes related to disabilities of the ankle would provide for a higher disability rating. The Veteran was first provided a VA examination during the appeal period in April 2014. At this examination, the Veteran’s left ankle range of motion was recorded as limited to 20 degrees of plantar flexion and 10 degrees of dorsiflexion, each without objective evidence of painful motion. Flares were noted, characterized by increased pain with activity, but no estimate of additional functional impairment in terms of additional lost range of motion was provided. Ankylosis was denied, and the examiner opined that the ankle disability would not impact the Veteran’s ability to work. No instability or weakness was noted on testing. The only past surgical procedures noted were a July 1986 surgery during service to address his initial fracture and a February 2008 removal of hardware. The Veteran was next examined in December 2015. The examiner determined the Veteran’s left ankle motion could not be tested because the ankle was practically fused in an immobile position with ankylosis in a good weight-bearing position. Flares were described with additional aching after prolonged use. The examiner further noted symptoms of swelling, deformity, disturbance of locomotion, interference with standing, and instability of station. A January 2016 VA examination reflected reports of flares with walking farther than 200 yards or standing for longer than 30 to 45 minutes characterized by increased pain. Limitation of motion in the left ankle was measured at 10 degrees of dorsiflexion and 25 degrees of dorsiflexion. The examiner did not provide any estimate of additional limitation during flares in terms of range of motion, but the report indicates pain, weakness, fatigability and incoordination during flares did not result in significant functional limitation. The examiner denied findings of ankylosis. Instability was suspected, but the examiner reported that anterior drawer test and talar tilt test were both negative. Finally, at a December 2019 VA examination after the Board’s remand, the Veteran reported severe loss of range of motion of the left ankle with constant aching pain, weakness, throbbing with flare ups, and difficulty with prolonged walking or standing as well as walking on uneven surfaces. Range of motion testing showed limitation to 5 degrees of dorsiflexion and 15 degrees plantar flexion. The examiner estimated that repetitive use over time and related flares would not result in additional limitation in dorsiflexion, but plantar flexion would be further limited to 10 degrees based on the Veteran’s reports. The examiner noted instability of station and endorsed the Veteran’s reports regarding limitation of prolonged walking and standing. Muscles strength was somewhat reduced from normal in both directions. Ankylosis was not found. As in the prior January 2016 examination, the examiner suspected instability or dislocation, but anterior drawer and talar tilt tests were negative. The Veteran reported regular use of a brace. The Veteran testified that he experiences pain, swelling, and limited range of motion at his May 2019 Board hearing. He further indicated that he has used an ankle brace for his left ankle on a regular basis, but he purchased this for himself and was not prescribed a brace by VA or another medical provider. The Veteran further reported that he was working as an electrician, a job that requires prolonged standing and walking that results in increased pain and swelling in his ankles. This pain has caused him to occasionally miss work. Based on this evidence, the Board finds the record does not reflect that the Veteran’s symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The Veteran does not meet the criteria for a rating greater than 20 percent under Diagnostic Code 5270 for ankylosis of the ankle. The preponderance of the medical evidence does not show the Veteran experiences ankylosis, though one examination from December 2015 reported the Veteran’s ankle was practically fused. Even accepting this as evidence of ankylosis, this impairment would only entitle the Veteran to a 20 percent rating under Diagnostic Code 5270. See 38 C.F.R. § 4.71a. The exam report does not reflect ankylosis in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between 0 degrees and 10 degrees, as the December 2015 examiner indicated the ankle was restricted in a good weight-bearing position. The Board also finds that a separate rating under Diagnostic Code 5270 is not warranted, as Diagnostic Codes 5270 and 5271 both provide ratings based on limitation of motion of the ankle. Therefore, the award of separate disability ratings under those codes would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran has not undergone a total arthroplasty of the left ankle that would warrant a rating under Diagnostic Code 5056. No medical evidence shows he experiences impairment of the ankle that would be analogous to amputation or loss of use of the left foot under Diagnostic Code 5167. No other diagnostic criteria support a schedular rating in excess of 20 percent based on impairment of the ankle or foot, and the record does not reflect subastragalar or tarsal join ankylosis, malunion of the os calcis or astragalus, or astragalectomy to support separate ratings under the relevant diagnostic criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5272-5274. For these reasons, the Board finds the preponderance of the evidence is against finding the Veteran is entitled to a schedular rating in excess of 20 percent for the residuals of his left ankle fracture and related degenerative arthritis, to include based on separate ratings under alternative Diagnostic Codes. The issue of consideration of an extraschedular rating was raised by the Veteran’s representative in a brief submitted in November 2020. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The record shows that he has complaints and findings of aching and throbbing pain, swelling, and instability, with flares on prolonged standing and walking. Functional impairment has generally been described as limitation of motion and difficulty with prolonged walking or standing, especially on uneven surfaces. For all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. The rating criteria under Diagnostic Code 5271 does not explicitly include particular symptoms, but instead describes levels of impairment or severity level. As a result, Diagnostic Code 5271 contemplates the entire range of symptoms resulting in impairment from a left ankle disability. For this reason, the Board finds that the Veteran’s specific symptoms and their severity are contemplated by the rating schedule. See, e.g., Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018). Because the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran’s disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran’s disability picture. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.