Citation Nr: 21004312 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-10 239 DATE: January 26, 2021 ORDER An increased rating of 20 percent for a left ankle disability is granted for the entire claim period. FINDING OF FACT Throughout the entirety of the appeal period, the Veteran’s left ankle disability has resulted in marked limitation of motion of the left ankle joint. CONCLUSION OF LAW The criteria for a rating of 20 percent for a left ankle disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271; Sharp v. Shulkin. 29 Vet. App. 26 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1979 to June 1989, with additional service in the Army National Guard of Texas. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction of the Veteran’s claims file currently resides with the Cheyenne, Wyoming RO. In January 2018 and December 2019, the Board remanded the issue of entitlement to an increased rating for a left ankle disability for additional development. This issue is once again before the Board for appellate review. Increased Rating As indicated above in the Conclusions of Law section, the Board finds that the Veteran is entitled to a rating of 20 percent for her left ankle disability for the entire claim period. Accordingly, the Board grants the Veteran’s claim. In support of this determination, the Board first notes that the Veteran’s left ankle is currently assigned a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limited motion of the ankle. Under this diagnostic code, a 10 percent rating is assigned for “moderate” limited motion, while a 20 percent rating is assigned for “marked” limited motion. The words “moderate” and “marked” are not defined in the rating schedule and, rather than applying a mechanical formula, the Board must evaluate the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. Turning to the evidence of record, the Board notes that the Veteran was provided one adequate VA examination during the pendency of her claim. This examination occurred in January 2020. A July 2019 VA ankle conditions examination was previously deemed inadequate by the Board in December 2019. Additionally, the Board finds that VA examinations from March 2014 and October 2011 are also inadequate as they do not contain flare-up findings consistent with the Court of Appeals for Veterans Claims’ (Court) holding in Sharp v. Shulkin. 29 Vet. App. 26, 32 (2017) (stating that, when evaluating joint disabilities in the rating schedule for the musculoskeletal system and applying 38 C.F.R. §§ 4.40 and 4.45, examiners should provide opinions in terms of whether pain further reduces functional ability during flare-ups in terms of the degree of additional range-of-motion loss). Unlike the VA examinations from July 2019, March 2014, and October 2011, the VA examination from January 2020 did produce findings consistent with Sharp. Specifically, the Veteran reported frequent flare-ups of the left ankle of mild to moderate severity. The Veteran elaborated that her flare-ups typically lasted 1-2 days. The examiner then stated that, during a flare-up, dorsiflexion of the left ankle would be limited to 5 degrees while plantar flexion of the left ankle would be limited to 10 degrees. Currently, VA considers “normal” ankle dorsiflexion to be 0 to 20 degrees and “normal” ankle plantar flexion to be 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II. Separate from this January 2020 VA examination report, the Board notes that VA and private VA treatment records associated with the claims file do not contain many left ankle ranges of motion measurements. However, VA treatment records from July 2019 document that the Veteran experienced frequent falls which she associated with her left ankle disability. While a VA medical provider noted that the Veteran had full range of motion of the left ankle, the provider did note mild tenderness with internal rotation and prescribed the Veteran a soft lace-up ankle brace for support and alignment. From this disability picture the Board concludes that the Veteran displayed marked limitation of motion of the left ankle during the claim period when considering the additional limitations caused by her flare-ups and their frequency. Under Diagnostic Code 5271, such limited motion warrants the assignment of a 20 percent disability rating and, as such, the Veteran’s claim is granted. This 20 percent rating is the maximum rating available under Diagnostic Code 5271. The only other relevant diagnostic code under which the Board could assign a rating in excess of 20 percent is 38 C.F.R. § 4.71a, Diagnostic Code 5270 for ankylosis of the ankle. Under Diagnostic Code 5270, a 30 percent rating is assigned when the ankle is ankylosed at between 30 and 40 degrees in plantar flexion, or at between 0 and 10 degrees in dorsiflexion. The maximum 40 percent rating is warranted when the ankle is ankylosed at more than 40 degrees in plantar flexion, or at more than 10 degrees in dorsiflexion, or with abduction, adduction, inversion, or eversion deformity. The Court has defined ankylosis as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See, e.g., Lewis v. Derwinski, 3 Vet. App. 259 (1992). At no point during the pendency of the Veteran’s claim has a medical professional noted ankylosis of the left ankle. Indeed, the adequate January 2020 VA examination report noted that ankylosis was not present and ankylosis is not noted in any medical treatment record associated with the Veteran’s claims file. Accordingly, the Board concludes that a rating greater than 20 percent is not warranted in the instant case. See 38 C.F.R. § 4.71a. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.