Citation Nr: 21004878 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-48 862 DATE: January 28, 2021 ORDER Entitlement to an increased rating to 30 percent, but no higher, for service-connected status post-surgical osteotomy with a history of fracture of the right ankle prior to March 13, 2020 (excluding the 100 percent rating from October 2, 2015 to March 1, 2016) is granted. Entitlement to an increased rating in excess of 30 percent for service-connected status post-surgical osteotomy with a history of fracture of the right ankle from March 13, 2020 is denied. FINDINGS OF FACT 1. For the period prior to March 13, 2020, the Veteran's right ankle disability was manifested by plantar flexion of less than 30 degrees, and dorsiflexion between 0 and 10 degrees. 2. From March 13, 2020, the Veteran’s right ankle disability was manifested by plantar flexion of 30 degrees, and dorsiflexion between 0 and 10 degrees. 3. Throughout the appeal, the preponderance of the evidence is against a finding that a right ankle disability was manifested by, or more nearly approximated by, plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees or with abduction, adduction, or with inversion or eversion deformity. CONCLUSIONS OF LAW 1. For the period prior March 13, 2020, the criteria for an increased rating 30 percent, but no higher, for the Veteran's right ankle disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5270, 5271. 2. From March 13, 2020, the criteria for an increased rating in excess of 30 percent for the Veteran’s right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5270, 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to April 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The matter was remanded in January 2020 for additional development. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). As such, in evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Right ankle The Veteran was granted service connection for his right ankle disability in a September 2006 rating decision. Thereafter, in April 2012 the Veteran filed a claim for an increased rating and a January 2014 rating decision continued the Veteran’s 20 percent rating. The Veteran filed a notice of disagreement in February 2014 and perfected an appeal to such. A May 2016 rating decision assigned a 100 percent rating based on surgical or other treatment necessitating convalescence from October 2, 2015 to December 1, 2015. A December 2016 rating decision extended the 100 percent rating to March 1, 2016. The 20 percent rating was continued from March 1, 2016. A September 2020 rating decision granted an increased rating to 30 percent effective March 13, 2020. The Veteran’s right ankle disability is currently assigned 20 and 30 percent ratings pursuant to Diagnostic Codes 5270 and 5271. Under Diagnostic Code 5271, moderate limitation of motion is assigned a 10 percent rating, and marked limitation of motion is assigned a 20 percent rating. Under Diagnostic Code 5270, a 20 percent rating is warranted for ankylosis of the ankle in plantar flexion at less than 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5270. A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion, between 30 and 40 degrees; or, in dorsiflexion, between 0 and 10 degrees. Id. A 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees; or, in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. Id. Although the Rating Schedule does not specifically define ankylosis of the ankle, the Board notes that ankylosis is generally defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Ankylosis, Dorland's Illustrated Medical Dictionary 94 (32d ed. 2012). For VA compensation purposes, the normal findings for ROM of the ankle are dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran was afforded a VA examination in January 2014. The Veteran reported constant pain, tenderness, chronic swelling and limited mobility/motion of the joint. Right ankle pain is worse with cold and rainy weather and the Veteran reported now wearing a right ankle brace secondary to very limited flexion of the ankle. The Veteran did not report flare ups impacting the function of the ankle. Right plantar flexion ended at 25 degrees with pain throughout. Right ankle dorsiflexion ended at 10 degrees, with pain throughout. After repetitive use testing right plantar flexion ended at 20 degrees and post-test dorsiflexion ended at 10 degrees. The Veteran had additional limitation in range of motion of the ankle following repetitive use testing and had functional loss including less movement than normal, weakened movement, pain on movement, swelling, deformity, disturbance of locomotion, interference with sitting, standing and weight bearing and localized tenderness or pain on palpation. Muscle strength testing of the right ankle revealed active movement against some resistance of the right ankle plantar flexion and the same for the right ankle dorsiflexion. Joint stability testing was normal. The Veteran showed ankylosis of the ankle of the right side in plantar flexion less than 30 degrees and in dorsiflexion between 0 and 10 degrees. Shin splints were not noted and there was no notation of total ankle joint replacement. A scar was noted as a result of the Veteran’s ankle disability, but the scar was not noted as being painful or unstable or greater than 39 square cm. The examiner noted that the Veteran had tenderness to palpation to the right medial, lateral ankle and mid ankle. He had chronic swelling and deformity to the right medial and lateral ankle. The examiner noted that the Veteran used a brace and cane as assistive devices; he used the brace constantly and the cane on a regular basis. The examiner noted that the Veteran’s ankle condition impacted his ability to work, causing pain, difficulty with prolonged walking and standing and with walking up and down stairs. The Veteran was treated for right ankle pain at the South Active Orthopedics in September 2015. At that time the Veteran reported pain which was constant and waxed and waned in severity. The pain was aching, dull and sharp in quality and did not radiate. The Veteran denied any additional symptoms, but the pain was noted as being aggravated by walking and with strenuous activity. Upon physical examination, the Veteran showed decreased range of motion secondary to pain. See September 2015 South Active Orthopedics Treatment Record. In October 2015 at the Colquitt Regional Medical Center, the Veteran was afforded a right ankle scope and fusion, and was admitted post operatively. The Veteran did well post operatively and pain was controlled on oral agent only. No issues were noted and the Veteran was considered stable for discharging to home one day post operation. See Colquitt Regional Medical Center October 2015 record. In May 2016 the Veteran sought treatment for his right ankle disability at Regional Therapy and at the South Active Orthopedics. On May 17, 2016 at Regional Therapy Center he was seen for post-operative rehabilitation, where treatment attempted to reduce the Veteran’s symptoms of ankle pain and stiffness. See May 17, 2016 Regional Therapy Center Records. The Veteran reported using no ambulation aids, with ambulation problem of limping on the left foot, being unable to squat and only being able to stand for 15 minutes or less without aggravating his pain. See Regional Therapy Center records. At the South Active Orthopedics, he noted that the pain had developed spontaneously and was mild to moderate in intensity and was localized to the anterior and lateral ankle. The Veteran was instructed to avoid vigorous activities. See May 2016 South Active Orthopedics medical treatment record. The Veteran sought treatment for his right ankle at Georgia Foot and Ankle between 2016 and 2017. See Georgia Foot and Ankle medical record treatment. During such treatment, the Veteran presented with swelling and pain in his right foot. He related swelling to his surgery of October 2015. Pain was localized to the medial aspect of the ankle joint. There was no appreciable range of motion of the ankle joint as expected. See October 2016-2017 Georgia Foot and ankle medical treatment record. At his September 2019 Board hearing, the Veteran reported that he experienced a worsening of his right ankle disability symptoms since his October 2015 ankle fusion surgery. See September 2019 Board Hearing Transcript. Specifically, the Veteran reported that he is now unable to move his ankle at all, as he has no range of motion. See September 2019 Board Hearing Transcript p.5. The Veteran was provided another VA examination in March 2020. At that examination the Veteran was diagnosed with osteotomy with a history of fracture of the right ankle and fusion of the right ankle. The Veteran reported that he was unable to do what he used to do like playing ball, and he could not run, as the ankle stayed swollen. He reported that he still had pain in his ankle. Sometimes his whole foot gets numb as a result of the ankle disability and he tried support stockings, but they did not help. He sometimes cannot wear his brace because his ankle swells. The Veteran reported flare ups of the ankle, specifically reporting having functional loss or functional impairment of the ankle. Range of motion measurements of the right ankle showed abnormal range of motion, with dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 25 degrees. Range of motion contributed to a right foot drop, with pain noted on examination, causing functional loss. Dorsiflexion and plantar flexion both exhibited pain. There was evidence of pain with weight bearing, but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no 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 after three repetitions. The Veteran was being examined immediately after repetitive use over time with no pain, weakness or fatigability or incoordination significantly limiting functional ability with repeated use over a period of time. The examination was being conducted during a flare up, with no pain, weakness fatigability or incoordination significantly limiting functional ability with flare ups. Muscle strength testing of the right ankle was normal and there was no noted muscle atrophy. Ankylosis of the right ankle was noted, in plantar flexion, at 30 degrees. Joint instability or dislocation was not suspected. The Veteran’s scar was noted without objective evidence of any pain or instability, or having a total area equal to or greater than 39 square centimeters. Specifically, the Veteran had multiple noted scars: scar one was the lateral portal 1 cm long and 1cm wide, scar two was lateral portal 1 cm long and 1 cm wide, scar three was of the anterior portal, 1 cm long and 1 cm wide and scar four was of the lateral portal 1 cm long and 1 cm wide. The Veteran reported using a brace on a regular basis and a cane on a regular basis. The Veteran reported functional impact as a result of his right ankle disability, specifically that he was unable to perform strenuous activities, no running, prolonged standing or walking. There was no evidence of pain on passive range of motion testing and no evidence of pain when the joint is used in non-weight bearing. Pain did not significantly limit functional ability during flare ups and repeated use over time did not significantly limit any range of motion. Following careful review of all the evidence of record, the Board finds that a 30 percent rating, but no higher, prior to March 13, 2020 is warranted. In this regard, prior to March 13, 2020, the Board finds that the Veteran’s right ankle disability has been manifested by constant pain, tenderness, chronic swelling and limited mobility/motion of the joint. Right plantar flexion ended at 25 degrees with pain throughout. Right ankle dorsiflexion ended at 10 degrees, with pain throughout. The Veteran showed ankylosis of the ankle of the right side in plantar flexion less than 30 degrees and in dorsiflexion between 0 and 10 degrees. Therefore, as dorsiflexion was between 0 and 10 degrees, a 30 percent rating is warranted. However, a higher 40 percent rating is not warranted as ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity has not been shown by the evidence of record at any point during the appeal period. The Board notes the Veteran's right ankle disability has been manifested by swelling, pain and numbness. During the March 2020 VA examination, range of motion measurements of the right ankle showed abnormal range of motion, with dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 25 degrees. Ankylosis of the right ankle was noted, in plantar flexion, at 30 degrees. The right ankle disability has not been shown to be manifested by ankylosis resulting in plantar flexion at more than 40 degrees, or dorsiflexion at more than 10 degrees. Therefore, a higher 40 percent rating is not warranted. The Board has further considered rating the Veteran's residual right ankle scar, as granted service connected in a September 2020 rating decision and assigned a noncompensable rating. However, the Veteran has not submitted any indication that he wishes to appeal the rating of the scar. Furthermore, the ankle scar has not been manifested by pain or instability and it does not cover an area of at least 6 square inches. Accordingly, a compensable rating for his residual scar is not warranted. Accordingly, the Board finds that a 30 percent rating, but no higher, prior to March 13, 2020 is granted, and a rating in excess of 30 percent thereafter for the service-connected right ankle disability is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DC 5270; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.