Citation Nr: 21005051 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-59 195 DATE: January 28, 2021 ORDER A rating in excess of 20 percent for residuals of right ankle fracture, status/post total ankle replacement, excluding a period of a temporary total rating, is denied. A rating in excess of 20 percent for lumbosacral strain with degenerative joint disease (DJD) is denied. FINDINGS OF FACT 1. The Veteran had active service from February 1970 to June 1972. 2. Excluding a period of a temporary total rating, a right ankle disability has been manifested by subjective complaints of pain and limited range of motion; objective findings include no evidence of chronic residuals consisting of severe painful motion or weakness. 3. A lumbar spine disability has been manifested by subjective complaints of pain and limited motion; objective findings include forward flexion to no less than 60 degrees and no evidence of ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of right ankle fracture, status/post total ankle replacement, excluding a period of a temporary total rating, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 5056 (2020). 2. The criteria for a rating in excess of 20 percent for lumbosacral strain with DJD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.71a, DCs 5237-5242 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Right Ankle The Veteran was rated at 20 percent under DC 5056 for residuals, right ankle fracture, status/post total ankle replacement, effective November 1, 2006. In September 2016, he filed a claim for an increased rating. The Regional Office (RO) granted a temporary total rating of 100 percent, effective November 2019, following total ankle replacement surgery. The 20 percent rating was resumed in January 2021. In order to warrant a rating in excess of 20 percent, the objective evidence must show chronic residuals consisting of severe painful motion or weakness. Turning to the medical evidence, a December 2016 VA examiner noted dorsiflexion to 5 degrees out of a possible 20 degrees and plantar flexion to 20 degrees out of a possible 45 degrees. Pain that caused functional loss was noted upon examination. There was no evidence of pain with weight bearing. Further, a February 2020 VA examination reflected dorsiflexion to 10 degrees and plantar flexion to 5 degrees which contributed to functional loss. There was no pain noted upon examination. The examiner noted that mild pain and weakness which limited functional ability after repeated use of the ankle over time. In addition, the examination report reflected restricted range of motion, limited strength, limited range of motion, and jabbing pain in the ankle. However, the examiner specifically indicated that there were no chronic residuals consisting of severe painful motion or weakness. As such, the VA examination reports do not support a rating in excess of 20 percent. As to the clinical evidence, the treatment records throughout the relevant period on appeal show pain and limited range of motion in the right ankle. Specifically, a September 2017 private treatment note showed evidence of pain and reduced range of motion in the contralateral ankle. The clinician recommended an arthroscopy and removal of hardware in the right ankle from a previous surgical procedure. Next, an October 2017 postoperative note reflected pain following an arthroscopic procedure. Weighing against the claim, a March 2020 treatment note reported that the right ankle was doing well and was generally stiff in the morning but improved with movement. While this clinical evidence has been reviewed, the records do not show chronic residuals consisting of severe painful motion or weakness. As such, the medical evidence does not support the claim for a rating in excess of 20 percent. Lumbar Spine Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5237-5243. Intervertebral disc syndrome (IVDS) is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Veteran has been rated at 20 percent under DCs 5237-5242 for a lumbosacral strain with DJD since September 26, 2016 and the Board will consider all relevant diagnostic codes. A rating in excess of 20 percent will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine 30 degrees or less (40 percent); • favorable ankylosis of the entire thoracolumbar spine (40 percent); • incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent). Turning to the medical evidence, the Veteran noted back aches, especially with movement, during a December 2016 VA examination. The examiner reported forward flexion of the thoracolumbar spine to 60 degrees. Normal range of motion is from 0 to 90 degrees. After three repetitions, no additional loss of range of motion was reported. During a February 2020 VA examination, the Veteran reported aching and constant pain of the back. The examiner measured forward flexion to 60 degrees. There was no additional loss of function or range of motion after repetitive use testing. As such, the medical evidence does not support a higher rating based on limited range of motion. Next, neither the December 2016 examiner nor the February 2020 examiner found evidence of ankylosis of the spine. As noted above, while range of motion was limited, ankylosis (a fixation of the spine) was not shown. Further, the VA examination reports did not reflect a diagnosis of IVDS. As such, the medical evidence does not support a higher rating based on these criteria. As to the clinical evidence, an April 2018 statement from a private physician noted that the Veteran’s spinal range of motion was deficient and limited numerous activities of daily living. He also noted that the condition had grown progressively worse. Further, July 2018 MRI lumbar spine reports reflected degenerative changes. In addition, clinical treatment records throughout the period on appeal reflect complaints of worsening low back pain. While this clinical evidence has been considered, it does not support a rating in excess of 20 percent as contemplated by the applicable rating criteria. The clinical evidence does not show flexion less than 30 degrees, ankylosis of the spine, or a diagnosis of IVDS. As such, the medical evidence does not support the claim. The Board has also considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s right ankle and lumbar spine disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kokolas, 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.