Citation Nr: 21004234 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 13-09 423A DATE: January 26, 2021 ORDER Entitlement to a rating higher than 10 percent for service-connected residuals of a right ankle fracture is denied. FINDING OF FACT The Veteran’s residuals of a right ankle fracture has resulted in no more than moderate limitation of motion when considering functional impairment on use or during flares. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for service-connected residuals of a right ankle fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.71, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1985 to October 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) (Agency of Original Jurisdiction (AOJ)). This appeal was most recently before the Board in February 2020, at which time it was remanded for further development. Specifically, the Board instructed the AOJ to afford the Veteran for additional examination to determine if his right ankle fracture caused additional nerve damage in the ankle. At the September 2020 VA examination, the examiner diagnosed tibial neuropathy and opined that tibial neuropathy was at least as likely as not related to his right ankle degenerative changes. The Board finds that the AOJ substantially complied with the remand instructions, and appellate adjudication may proceed without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268 (1998). To that end, the AOJ assigned a separate 10 percent rating for right ankle tibial neuropathy, effective July 26, 2010. See September 2020 Rating Decision. To date, the Veteran has not appealed either the assigned rating or effective date of the award. Thus, the issue is not before the Board at this time. As such, the ensuing analysis will focus on the Veteran’s claim for a higher rating for residuals of the right ankle fracture, to include degenerative changes. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that his right ankle disability is more severe than the current rating contemplates. The Veteran’s right ankle disability is currently rated 10 percent disabling, indicative of moderate limitation of motion of the ankle. To warrant a higher rating, the ankle disability must manifest marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Words such as “moderate” and “marked” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. After review of the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability picture for his ankle disability more nearly approximates “marked” limitation of ankle motion. Turning to the facts of the case, the Veteran filed an increased rating claim for his right ankle in July 2010. At the September 2010 VA examination, the Veteran described having constant moderate to severe pain in the right ankle along with weakness and stiffness. He presented with normal gait and denied the use of assistive devices for ambulation. In terms of functional impairment, the Veteran had difficulty with prolonged standing and walking for more than a half hour, along with difficulty climbing steps. He used over-the-counter pain medication approximately 3 times per week with good results. Range of motion testing revealed full range of motion in all directions. The Veteran was able to perform repetitive use testing with three repetitions with no additional loss in function or range of motion. There was no evidence of weakness, stiffness, instability, giving way, locking, or effusion of the right ankle. At the July 2015 VA examination, the Veteran reported stiffness and tearing pain in the right ankle, along with discomfort on damp, rainy days. He regularly used a brace to ambulate. While there were no flare ups of the ankle, the Veteran was unable to run and was only able to walk and stand for 15 minutes. Range of motion testing revealed full dorsiflexion and plantar flexion limited to 20 degrees. While pain was noted upon plantar flexion, the pain did not result in or cause functional loss. There was no evidence of pain with weight bearing nor was thee objective evidence of localized tenderness or pain or palpation of the joint. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner also determined that neither pain, weakness, fatiguability, nor incoordination significantly limited functional ability with repeated use over a period of time. The Veteran demonstrated normal strength in the right ankle and there was no evidence of crepitus, instability, or dislocation. In September 2016, the Veteran underwent a private orthopedic examination to determine the severity of his right ankle disability. At that time, the Veteran reported being unable to stand or walk on his right ankle for prolonged periods of time due to constant pain. Upon range of motion testing, dorsiflexion was 10 degrees while plantar flexion was 30 degrees. He was able to ambulate without a handheld assistive device, but he did wear an elastic orthotic to support the right ankle. At the October 2019 VA examination, the Veteran continued to endorse right ankle pain associated with prolonged standing or walking. Range of motion testing revealed dorsiflexion to 10 degrees and plantar flexion to 25 degrees. There was no evidence of pain with weightbearing or non-weight-bearing, nor was there evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner also determined that neither pain, weakness, fatiguability, nor incoordination significantly limited functional ability with repeated use over a period of time. The Veteran demonstrated normal strength in the right ankle and there was no evidence of crepitus, instability, atrophy, or dislocation. The Veteran occasionally used a brace to assist with ambulation. Most recently, at the September 2020 VA examination, the Veteran reported having constant right ankle pain on the medial side of the right ankle, which interfered with his ability to stand or walk. While the Veteran denied having functional loss or functional impairment of the ankle, he did describe having flare ups of sharp pain. Both active and passive range of motion testing revealed dorsiflexion limited to 15 degrees and plantar flexion limited to 40 degrees. The examiner noted pain on examination on rest/non-movement. There was mild tenderness located at the medial malleolus. There was no pain with either weight-bearing or non-weight-bearing nor objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner found that pain significantly limited functional ability during flare ups and with repeated use over a period of time; however, the examiner estimated that range of motion would remain the same. The Veteran maintained normal muscle strength upon flexion and there was no evidence of muscle atrophy or joint instability. Upon consideration of the evidence delineated above, the Board finds no basis upon which to assign a rating greater than the currently assigned 10 percent, as the evidence fails to demonstrate “marked” limitation of motion at any point during the relevant time period. Instead, the evidence shows that the Veteran’s condition resulted in dorsiflexion limited to 10 degrees and plantar flexion limited to 20 degrees, at worst. In addition, while the Veteran experiences pain, he is not so limited by pain that his movement is further decreased, and he is able to ambulate, albeit painfully. Thus, event with consideration of functional impairment on use or during flares, these manifestations are moderate in severity. Accordingly, the Board finds no basis upon which to assign a rating greater than 10 percent under the criteria set forth in Diagnostic Code 5271. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board notes that the Veteran is credible to the extent that he believes he is entitled to a higher rating for his disability. This lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the impairment based on objective data coupled with the lay complaints. The Board has also considered whether the Veteran may be entitled to a higher rating under any other applicable rating criteria. However, there is no evidence of ankylosis of the ankle or subastragalar or tarsal joint to allow for application of Diagnostic Codes 5270 or 5273. Further, the evidence of record does not demonstrate malunion of the calcaneus or talus, and there is no indication that the Veteran had undergone a talectomy (an astragalectomy). Accordingly, the Board finds that the evidence does not support a rating under Diagnostic Codes 5273 or 5274. In finding that an evaluation in excess of 10 percent is not warranted for the Veteran's right ankle disability, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting a rating greater than that already assigned at any point during the relevant time period under any applicable Diagnostic Code. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Orie, Chinyere 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.