Citation Nr: 21004903 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-19 503 DATE: January 28, 2021 ORDER Entitlement to the restoration of a 20 percent rating for service-connected right ankle sprain is denied. FINDING OF FACT The probative evidence of record demonstrates that the Veteran’s range of motion of her right ankle does not result in a marked limitation of motion. CONCLUSION OF LAW Entitlement to the restoration of a 20 percent rating for service-connected right ankle sprain is denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from April 1992 to March 1996. The Veteran’s appeal originates from an August 2015 rating decision effectuating the reduction of the Veteran’s rating from 20 percent to 10 percent for her service-connected right ankle sprain. In February 2020, the Veteran testified before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. The Veteran testified at the hearing that there are outstanding private treatment records for her right ankle. At the hearing, she submitted nine pages of documents, but the hearing transcript states that there were 91 pages. The Board has considered the record submitted by the Veteran. The records appear to match the Veteran’s testimony and the Board finds that the transcription of “91” pages of records to be inaccurate. Thus, a remand to obtain these records is unnecessary. Ratings Reductions The propriety of the reduction for the Veteran’s right ankle sprain, from 20 percent to 10 percent The Veteran contends that her right ankle disability should not have been reduced from 20 to 10 percent. By way of history, the Veteran was granted service connection for her right ankle sprain effective March 11, 1996 and the rating was increased to 20 percent effective October 21, 1997. Through an August 2015 rating decision, the Veteran’s rating was reduced to 10 percent effective November 1, 2015. The Veteran requested a hearing on the proposal to reduce her rating which was conducted. Congress has provided that a veteran’s disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When a RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Proposing a reduction and allowing a hearing on the reduction are both required and were accomplished in this case. For reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Under § 3.344(a), the examination that is used to reduce a rating must be as “full and complete” as the examination that is used to grant a rating. Here both the July 1998 and September 2014 examinations were specific to the Veteran’s right ankle function. Therefore, the Board finds that the examination leading to the rating decrease was at least as “full and complete” as the examination that assigned the 30 percent rating. As for the propriety of the rating itself, Diagnostic Code 5271 governs the rating criteria for the Veteran’s ankle sprain. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension.” See www.merriam-webster.com/dictionary/moderate. “Marked” means “having a distinctive or emphasized character.” See www.merriam-webster.com/dictionary/marked. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. At the Veteran’s July 1998 VA examination, the Veteran reported that her ankle was painful when she used it and it was “weak.” She felt like it would give away at times, although it had not. She reported mild swelling bilaterally and that she felt popping around her ankle at times. She denied weakness, but said she limped at times. Upon range of motion testing, her dorsiflexion was 25-30 degrees and plantar flexion was 30 degrees. There was no swelling and mild tenderness. She had +1/+2 laxity anteriorly. Inversion was 10 degrees and eversion was 15 degrees. Strength and fatigability were within normal limits, her gait was not antalgic, and there was slightly increased pain with repetitive use. Concurrent medical evidence, as referenced in the July 1998 rating decision, includes evidence of laxity, instability, and near falls. At the Veteran’s September 2014 VA examination, the Veteran reported sharp shooting pain that intermittently started in the ankle, but was more in the medial thigh; intermittent pain when her ankle popped; and the ankle gave way, however, she couldn’t quantitate the average number over a course of a month, and just stated it varies. On range of motion testing, the Veteran’s right plantar motion was full (45 degrees) and her dorsiflexion was 10 degrees (20 degrees is full). Except for tenderness, the remainder of the objective examination was within normal limits. The examiner stated that while the Veteran’s dorsiflexion was reduced, it was not so greatly reduced that her gait would be impacted. An August 2016 VA examination was essentially identical to the September 2014 examination. Turning to the Veteran’s treatment records, the Veteran did seek treatment referencing right ankle pain noting similar symptoms. However, the records contain no range of motion testing using a goniometer that might yield meaningful measurements for the Board to consider. The Veteran continued to seek treatment for symptoms in her right foot and ankle, but the Veteran’s treatment was mostly focused on her right heel, foot, and toes and did not involve her ankle. The Board has considered the Veteran’s testimony and correspondence related to weakness, giving way, and popping. While the Veteran testified to ongoing symptoms, the Board finds that restoration of a 20 percent rating is not warranted. The Veteran’s symptoms, to include her limited range of motion, was greater in July 1998 than it was in examinations in September 2014 and August 2016. Her plantar flexion was within normal limits in the recent examinations and her dorsiflexion was not limited past the point where her gait would be affected (10 degrees). While the Veteran’s dorsiflexion in July 1998 appears to be greater than recent examinations, her plantar flexion was more limited in July 1998 than in current testing (full range of motion). Further, the Veteran’s original rating was in part based on evidence indicating laxity of her right ankle which would lead it to give way. While the Board recognizes that the Veteran asserts that the same symptoms continue, there is no medical documentation confirming the objective presence of instability or laxity. Thus, the Board gives greater weight to the contemporaneous medical evidence. Therefore, given that the Veteran experiences moderate limitation of motion in her right ankle, the Board finds that a 10 percent rating adequately captures her current symptoms. Thus, the reduction was proper. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the Veteran’s reports of symptomology of her right ankle are credible; however, the Board affords more probative weight to the objective examinations and findings of the trained medical professionals in the record. They do not document a marked limitation of the right ankle. Nor do they document objective weakness or instability. Instead, the Veteran’s recent problems appear to be related to her right foot and toes and neither of these issues are on appeal such that the Board might consider whether they are secondary to the Veteran’s right ankle. The medical evidence is more probative in determining what symptoms are related to his right ankle versus another impairment of the right foot. In view of the above, the weight of the evidence is against the claim for restoration of a 20 percent rating for impairment of the right ankle. Accordingly, the claim is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.