Citation Nr: 21062929 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-35 192A DATE: October 12, 2021 ORDER Entitlement to a rating in excess of 10 percent for peroneal tear of the right ankle is denied. FINDING OF FACT The Veteran's dorsiflexion has never been limited to less than 5 degrees, nor has his plantar flexion been limited to less than 10 degrees. The Veteran has never been found to have ankylosis of the right ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for peroneal tear of the right ankle have not been met. 38 U.S.C. §§ 1155, 5107, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5010-5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1996 to January 2000 and from September 2000 to July 2005. This matter comes to the Board of Veterans' appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In April 2020, the Board remanded this matter along with five other issues, including entitlement to service connection for degenerative disc disease of the lumbar spine with intervertebral disc syndrome, entitlement to service connection for a left knee disability, entitlement to service connection for a right knee disability, entitlement to service connection for a right shoulder disability, and entitlement to service connection for a left shoulder disability. In a July 2020 rating decision, the RO granted service connection for the Veteran's back and left and right knee disabilities. Considering these issues were granted in full, the Board finds that they are no longer on appeal. In an August 2020 SSOC, the RO denied service connection for left and right shoulder strain and continued the 10 percent evaluation for peroneal tendon tear of the right ankle. In September 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), requesting higher level review of the claims for entitlement to service connection for left and right shoulder strain, and opted into the modernized review system, also known as the Appeals Modernization Act (AMA), from the August 2020 SSOC. In January 2021, the RO issued the HLR decision. Considering the Veteran opted into the AMA system with respect to the issues of service connection for left and right shoulder strain, the Board finds that they are no longer part of this appeal and will not be addressed here. The options for further review of the RO's January 2021 rating decision are outlined in the January 2021 notification letter. Entitlement to an initial rating in excess of ten percent for peroneal tear of the right ankle The Veteran was granted service connection for peroneal tendon tear of the right ankle in the April 2014 rating decision and awarded a 10 percent disability rating from October 2011. The Veteran's right ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The U.S. Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). The applicable rating criteria for Diagnostic Code 5271 regarding limited motion of the ankle did change; however, it was not a substantive change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)). The revised regulations for Diagnostic Code 5271 define marked and moderate limitation of motion as it applies to the ankle. Under the revised regulations, marked limitation of motion of the ankle is defined as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. Moderate limitation of motion of the ankle is defined as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. The evaluations remain the same, that is marked limitation of motion provides a 20 percent evaluation, and moderate limitation of motion provides a 10 percent evaluation. As the earlier iteration of Diagnostic Code 5271 did not provide a defined degree of limitation of motion for either marked or moderate, the Board will adopt the new definitions for the analysis. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for peroneal tendon tear of the right ankle because dorsiflexion measured 15 degrees and plantar flexion measured 35 degrees. Thus, these measurements did not meet the criteria corresponding to a higher 20 percent rating. The Veteran underwent VA examinations pertaining to his right ankle in March 2014 and July 2020. During the March 2014 VA examination the Veteran reported flare ups and he described the impact as painful walking, standing, and climbing and being unable to run. At that time, right ankle plantar flexion ended at 45 degrees and the Veteran had objective painful motion at 40 degrees. His right ankle dorsiflexion was 20 degrees or greater and objective evidence of painful motion was observed at 20 degrees or greater. The Veteran was able to perform repetitive use testing with three repetitions and his range of motion testing remained the same after repetitive use testing. With respect to functional loss, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, and interference with sitting, standing and weight bearing were noted. The Veteran had pain on palpation and normal muscle strength testing. Laxity and ankylosis were not found. X-rays from March 2014 revealed swelling of the lateral aspect of the right ankle. The examiner noted the impact of the ankle condition on the Veteran's ability to work was that it was hard to work at Camp Bullis on irregular surfaces because of pain in his ankle. The examiner indicated there was no leg length discrepancy. There were contributing factors of pain, weakness, fatigability, and/or incoordination; and there was additional limitation of functional ability of the ankle joint during flare-ups or repeated use over time. The degree of range of motion loss during pain on use or flare-ups was approximately 10 degrees in all directions. The June 2020 VA examiner indicated the Veteran's condition had progressed. In addition to peroneal tear of the right ankle, the Veteran also had a diagnosis of degenerative arthritis. It was noted the Veteran had to wear boots at work due to a lot of walking and instability. Reported symptoms included chronic right ankle pain, crepitus, instability, stiffness, weakness, constant popping of ankle, and aching. The Veteran did not report flare-ups. With respect to functional loss, the Veteran reported difficulty with prolonged walking and standing, and walking on uneven surfaces. The Veteran's dorsiflexion was zero to 15 degrees and his plantar flexion was zero to 35 degrees. The examiner indicated that pain was noted on exam but did not result in or cause functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive use testing and there was not additional loss of function or range of motion after three repetitions. The examiner indicated that pain, weakness, and fatigue significantly limited functional ability with repeated use over a period of time and caused functional loss. The examiner described this functional loss in terms of range of motion of zero to 10 degrees dorsiflexion and zero to 25 degrees plantar flexion. The examination revealed a reduction in muscle strength at a level of three out of five, but the Veteran did not have muscle atrophy. No ankylosis was noted. Ankle instability or dislocation was suspected in both ankles, but joint stability testing was negative. The examiner noted the Veteran was limited in running, kneeling, jumping, crawling, squatting, prolonged standing, prolonged ambulation, climbing stairs and high impact activities. At the time of the Board hearing, the Veteran explained that it had been 20 years since his ankle injury, and he has learned to deal with it. He stated he retaught himself how to walk. He stated there was a lot of pain in his ankle shortly after the injury and several years after that. The pain got to the point where it made it difficult to walk and run. It was impossible for the first couple of years because there was too much pain. He then found himself learning how to walk differently in a way that did not cause so much pain by transferring his weight differently to the other side of his body to keep weight off his leg. He stated flare ups can be pretty bad. On some days his ankle gets swollen and there are days his range of motion is very limited, so walking becomes an issue. He stated he did not think there had been a change in his ankle since the prior examination, but adjustments had been made along the way. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain; fatigue; weakness; weakened movement; excess fatigability; incoordination; instability of station; interference with sitting, standing, and weight bearing; pain during flare-ups; and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that he has difficulty walking and running on occasion, has trouble with prolonged standing and walking, and has difficulty climbing and on uneven surfaces, would not result in symptoms more nearly approximating marked limited motion of the ankle. Specifically, the March 2014 VA examiner noted that the degree of range of motion loss during pain on use or flare ups was approximately 10 degrees in all directions, indicating 35 degrees plantar flexion and 10 degrees dorsiflexion. The June 2020 VA examiner found that the Veteran's pain, fatigue, and weakness caused functional loss, which could be described in terms of range of motion of zero to 10 degrees dorsiflexion and zero to 25 degrees plantar flexion. The range of motion loss does not meet the criteria for marked limited motion. Thus, a rating in excess of 10 percent is not warranted under the schedular criteria or after consideration of DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Code 5271; DeLuca, 8 Vet. App. at 202. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. There is no evidence suggesting the Veteran has had ankylosis of the right ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for peroneal tendon tear of the right ankle. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.