Citation Nr: 21062992 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 11-00 011A DATE: October 12, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for left ankle sprain is denied. Entitlement to special monthly compensation (SMC) for loss of use of the left foot due to left ankle sprain is denied. FINDING OF FACT 1. At no point during the period on appeal has the Veteran's left ankle sprain manifested as marked limitation of motion. 2. At no point during the period on appeal has the Veteran's left ankle sprain manifested as marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 3. The weight of the evidence is against a finding that at any point during the period on appeal the Veteran's left ankle sprain has resulted in functional impairment to an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. CONCLUSION OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for left ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a (2009). 4.71a (2021). 2. The criteria for entitlement to SMC for loss of use of the left foot have not been met. 38 U.S.C. §§ 1114, 1155, 5107(b); 38 C.F.R. §§ 3.350, 4.1, 4.7, 4.63. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Navy from January 1973 to March 1975. This matter originates from a January 2010 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that granted service connection for left ankle sprain and assigned an initial evaluation of 10 percent. The Veteran appealed, seeking a higher initial rating. This matter was most recently before the Board of Veterans' Appeals (Board) in December 2019, at which time it was remanded for additional development pursuant to an August 2019 order from the Court of Appeals for Veterans Claims (CAVC). As discussed by the Board in December 2019, at that time there was no VA examination of record which adequately addressed the question of whether the Veteran experienced additional loss of function or range of motion during flare ups of his left ankle disability. The Board also noted the Veteran's contention that his left ankle disability resulted in the loss of use of his left foot. The Board thus remanded the Veteran's claim to obtain a VA medical evaluation that addressed the severity of his left ankle disability, to include evaluation of any additional loss of function or range of motion during flare ups and any residuals resulting in the loss of use of his left foot. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed further below, the Veteran was afforded a VA examination in June 2021 that addressed the questions of flare ups and loss of use. Accordingly, the Board finds that there has been substantial compliance with its December 2019 remand directives and adjudication of the Veteran's claim is proper at this time. 1. Entitlement to an initial disability rating in excess of 10 percent for left ankle sprain is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's left ankle sprain is rated under diagnostic code 5271 on the basis of limitation of motion. 38 C.F.R. § 4.71a. At the time of the Veteran's June 2009 claim for service connection, a disability rating of 10 percent under diagnostic code 5271 required a showing of moderate limitation of motion. 38 C.F.R. § 4.71a, diagnostic code 5271 (2009). A disability rating of 20 percent, the highest available under diagnostic code 5271, required a showing of marked limitation of motion. Id. Under the provisions of 38 C.F.R. § 4.71a currently in effect (from February 7, 2021), a 10 percent rating for moderate limitation of motion requires a showing of less than 15 degrees dorsiflexion or less or less than 30 degrees plantar flexion, and a 20 percent rating for marked limitation of motion requires a showing of less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. 38 C.F.R. § 4.71a, diagnostic code 5271 (2021). A June 2009 VA treatment note reflects left ankle dorsiflexion to 10 degrees. 06/10/2009, Medical Treatment Record Government Facility, p. 2. A November 2009 VA examiner documented dorsiflexion of 10 degrees and plantar flexion to 20 degrees. In August 2011 the Veteran reported to VA treating providers that his left ankle would hurt after 20 minutes of standing. 10/26/2018, CAPRI, p. 9. In September 2014 VA treating providers documented the Veteran's report of intermittent left ankle pain after 20 minutes of standing. 08/26/2016, CAPRI, p. 1. In January 2015 the Veteran reported left ankle pain after standing 20 minutes, and that he used a cane. 09/25/2018, CAPRI, p. 50. In April 2016 the Veteran reported left ankle pain after 20 minutes of standing or 15 minutes of walking, and that he used a cane full time. Id. at p. 19. A September 2016 VA examiner documented left ankle dorsiflexion to 15 degrees and plantar flexion to 35 degrees. 09/14/2016, C&P Exam, p. 5. There was no change with repeated motion. A May 2018 VA examiner documented dorsiflexion to 10 degrees and plantar flexion to 25 degrees. 05/24/2018, C&P Exam, p. 4. In April 2019 VA treating providers noted that the Veteran's gait was antalgic due to left ankle pain, and that he ambulated with a cane. 03/24/2020, CAPRI, p. 60. In June 2021 the Veteran reported to a VA examiner that flare ups of his left ankle sprain occurred approximately three times a week, that they lasted overnight, and that they were precipitated by walking or standing "too long." The examiner documented dorsiflexion to 5 degrees during flare ups, and plantar flexion to 30 degrees during flare ups. The November 2009, September 2016, and May 2021 VA examiners noted no ankylosis; ankylosis was not addressed by the May 2018 VA examiner. In light of the foregoing, the Board finds that at no point during the period on appeal has the Veteran's left ankle sprain manifested as marked limitation of range of motion; or less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The Board has considered whether any other diagnostic codes would be appropriate to evaluate symptoms of the Veteran's disability, but finds none that are relevant here. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Accordingly, the Board finds that the criteria for entitlement to a disability rating in excess of 10 percent for left ankle sprain have not been met, and the same is hereby denied. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a (2009). 4.71a (2021). 2. Entitlement to special monthly compensation (SMC) for loss of use of the left foot due to left ankle sprain is denied. The Veteran contends that his left ankle sprain has resulted in the permanent loss of use of his left foot. 08/22/2018, Power of Attorney (accompanying correspondence), p. 1. The Board notes that this issue has been separately adjudicated in an October 2018 rating decision. The record does not reflect any timely perfection of an appeal of this issue. However, VA has a "well-established" duty to maximize a Veteran's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty includes inferring a claim for SMC where it is raised by the record. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). As noted above, the record includes a contention that the Veteran's left ankle sprain has resulted in the loss of his of his left foot. A May 2018 VA examiner stated that the Veteran's left ankle sprain resulted in the permanent loss of use of the left foot. 05/24/2018, C&P Exam, p. 4. In December 2019 the Board directed that the RO undertake development consistent with a claim for SMC for loss of use. Accordingly, the Board now concludes that a claim for SMC for permanent loss of use of the left foot caused by the Veteran's left ankle sprain has been raised and is properly before it. SMC is payable for loss of use of one foot. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350. Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. 38 C.F.R. §§ 3.350, 4.63. As noted above, a May 2018 VA examiner stated that the Veteran's left ankle sprain resulted in the permanent loss of use of the left foot. However, the examiner provided no additional evaluation concerning the status of the Veteran's left foot that would allow the Board to evaluate the examiner's statement in light of the applicable legal standard. The May 2018 examiner's statement as to permanent loss of use of the left foot is therefore of limited probative value. Further, an October 2018 VA examiner stated that there was no medical evidence of permanent loss of use of the left foot, as the Veteran was able to walk and stand on both feet. 10/17/2018, C&P Exam, p. 2. In September 2016 and June 2021 two different VA examiners opined that the Veteran's left ankle sprain did not result in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. In light of the foregoing, the Board finds that the weight of the evidence is against a finding that, at any point during the period on appeal, the Veteran's left ankle sprain has resulted in loss of use of the left foot such that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. Accordingly, the criteria for SMC for loss of use of the left foot are not met, and the same is hereby denied. 38 U.S.C. §§ 1114, 1155, 5107(b); 38 C.F.R. §§ 3.350, 4.1, 4.7, 4.63. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.