Citation Nr: 21004658 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-31 760 DATE: January 27, 2021 ORDER Prior to November 24, 2020, an increased disability rating of 20 percent, but no higher, for residual right ankle injury is granted. From November 24, 2020, an increased disability rating in excess of 20 percent for residual right ankle injury is denied. FINDING OF FACT The Veteran’s residual right ankle injury manifested with additional functional loss showing marked limitation of motion; it was not manifested as ankylosis. CONCLUSIONS OF LAW 1. Prior to November 24, 2020, the criteria for an increased disability rating of 20 percent, but no higher, for residual right ankle injury are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003-5271. 2. From November 24, 2020, the criteria for an increased disability rating in excess of 20 percent for residual right ankle injury are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003-5271. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1999 to February 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision. In August 2015, a videoconference hearing was held before a Veterans Law Judge (VLJ) no longer with the Board, and a transcript is of record. As the VLJ who presided at a hearing must participate in the decision on the claim, 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604 (formerly 20.707), the Veteran was offered the opportunity for another hearing before the VLJ who would decide his case. By letter dated in August 2019, the Veteran waived his right to such hearing. In December 2016, November 2019, and August 2020, the Board remanded this issue for further development, and the case has been returned for appellate consideration. On remand, in a November 2020 rating decision, the evaluation of the Veteran’s residual right ankle injury was increased to 20 percent disabling, effective November 24, 2020. As this disability rating is less than the maximum benefit available and the Veteran has not indicated satisfaction with the rating assigned, the appeal for a higher disability rating remains before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the veteran’s symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate diagnostic codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s residual right ankle injury is evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5271, currently evaluated as 10 percent disabling prior to November 24, 2020, and 20 percent disabling thereafter. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, Diagnostic Code 5003 sets forth the criteria for rating degenerative arthritis, and Diagnostic Code 5271 sets forth the criteria for limited motion of ankle. Under Diagnostic Code 5271, a disability rating of 10 percent is warranted for moderate limitation of the ankle, and a rating of 20 percent, the maximum, is warranted for marked limitation of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal ankle dorsiflexion is from zero to 20 degrees, and normal ankle plantar flexion is from zero to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran contends that his residual of right ankle injury is more disabling than contemplated by the currently assigned disability ratings. The Veteran was afforded VA examinations in February 2012, September 2013, August 2017, December 2019, and November 2020, during which his plantar flexion with pain was 30, 40, 15, 10, and 5 degrees, respectively, while his dorsiflexion with pain was 15, 15, 15, 10, and 5 degrees. In April 2012, his treating physician noted that the Veteran had an apprehensive type gait/protective gait “as if his ankle is going to give way or turn on him.” In July 2012, it was stated that he had “complex lateral and anterior instability” of the right ankle that was “significant and chronic enough to cause his tarsal joint to be in poor weightbearing condition.” It was stated that the instability affected the Veteran’s weightbearing ability and limited him from running, squatting, climbing, crouching, cutting maneuvers, quick start/stop maneuvers, and pivoting maneuvers. The Veteran consistently reported constant pain in the right ankle with swelling and stiffness, which increased with longer periods of standing or walking. (February 2012 VA examination; February 2015 VA primary care visit, noting right ankle edema.) He reported missing days from work due to right ankle dysfunction as well as for doctors’ appointments. (February 2012 VA examination; August 2015 hearing.) VA medical records show that the Veteran was fitted for a right ankle brace in September 2011, and he consistently reported needing assistive devices to aid in ambulation: brace, cane, crutch, or a combination. The evidence establishes that the Veteran had been successful in the automotive industry, as a mechanic and in sales, and had to leave that work for a desk job due to his right ankle dysfunction. (October 2011 co-worker statement; October 2011 statement from supervisor; August 2015 hearing.) During the August 2017 VA examination, the Veteran was unable to perform repetitive use testing due to pain. He was afforded a VA examination in March 2019, during which he could not perform range of motion testing at all due to pain, and passive movement caused “severe pain.” In January 2019, a VA podiatrist noted that the Veteran’s “right foot was decreased in dorsiflexion and plantarflexion inversion and eversion between 70 and 80%.” Pain on palpation was recurrently evident during examinations. In December 2019 and October 2020 addenda VA medical opinions based upon retrospective review of the claims file, it was opined that pain caused functional loss, and it was estimated that it would not have resulted in any further reduction in range of motion during repeated use over time or flare-ups. Based upon the foregoing, the Board finds that the Veteran’s symptoms of residual right ankle injury manifested as marked limited motion of the ankle. Although range of motion testing has not always revealed significant limitation of ankle motion, the Veteran nevertheless has been limited by pain, swelling, stiffness, and laxity, which increased with activity such as standing, walking, squatting, climbing, and quick movements. Furthermore, he has continually used some form of assistive device or combination of devices to aid ambulation. Therefore, under Diagnostic Code 5271, a disability rating of 20 percent is warranted. The Board has considered the other diagnostic codes pertaining to the ankle, however, the Veteran has not been found to have ankylosis of the subastragalar or tarsal joint (5272), malunion of os calcis or astragalus (5273), or astragalectomy (5274), and the Veteran does not contend otherwise. 38 C.F.R. § 4.71a, Diagnostic Codes 5272-5274. Additionally, the Veteran has not been diagnosed with ankylosis of the ankle. Ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 68 (4th ed. 1987)). The Board notes the Veteran’s complaints that VA examinations not being properly conducted and his statements that his right ankle is “locked.” (Hearing Transcript ; January 2019 Correspondence; May 2020 Correspondence.) He is competent and credible to report his perception of his symptoms. See 38 C.F.R. § 3.159(a)(1)–(2) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). As stated above, in finding that the limitation of motion of the Veteran’s right ankle is marked, the Board has accounted for his lay statements concerning pain, swelling, and stiffness that may have produced short periods of immobility of the ankle. As to the presence of ankylosis as a diagnosed medical condition, however, specific medical training is required to make such a diagnosis, and accordingly, the Board finds the medical findings more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007). During the November 2020 VA examination, the Veteran demonstrated plantar flexion and dorsiflexion of 5 degrees in each direction. The Veteran has consistently reported laxity of the right ankle, and this also was demonstrated during examinations. Cf. English v. Wilkie, 30 Vet. App. 347 (2018) (holding that lay evidence of knee instability could support evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5257). In other words, the preponderance of the evidence is against finding that the Veteran’s right ankle disability manifests as “immobility and consolidation” of the joint or as a condition mimicking same, and therefore, evaluation under Diagnostic Code 5270 for ankylosis is not appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Consequently, the Board finds that the evidence of record establishes that the Veteran’s disability picture for his residual right ankle injury more closely approximates the criteria for a disability rating of 20 percent, but no higher. 38 C.F.R. § 4.71a, Diagnostic Code 5271. In a January 2021 appellate brief, without any specifics or argument to support the contention, the Veteran’s representative raised a claim for entitlement to an extraschedular rating for the Veteran’s residual right ankle injury. To accord justice to the exceptional case where schedular ratings are found to be inadequate, an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability is authorized. 38 C.F.R. § 3.321(b); 82 Fed. Reg. 57830, 57835 (Dec. 8, 2017) (clarifying that extraschedular ratings are based upon a single disability, not the combined effects of multiple disabilities); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (setting out the three-step inquiry for determining whether a veteran is entitled to an extraschedular rating). Prior to engaging in an extraschedular analysis, however, the Board must determine whether the Veteran is in receipt of maximum benefit under the schedular alternatives. Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019) (“We hold that VA’s duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered.”) For the reasons stated above, the Board has accounted for all the symptoms of the Veteran’s right ankle disability under the schedular alternatives. Although the representative referred to “exceptional and unusual symptoms and severity” of symptoms, neither the Veteran nor his representative have identified any such symptoms. Consequently, there is no basis upon which the Board may consider entitlement to an extraschedular disability rating for his residual right ankle injury. As such, an extraschedular rating is not warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.