Citation Nr: 21063275 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-35 960 DATE: October 13, 2021 ORDER Entitlement to an increased rating in excess of 10 percent prior to November 8, 2019, and in excess of 20 percent thereafter for right ankle sprain with chip fracture, anterior tibia is denied. FINDINGS OF FACT 1. Prior to November 8, 2019, the Veteran's right ankle disability was productive of no more than moderate limitation of motion. 2. From November 8, 2019, the medical evidence of records has shown that the Veteran's right ankle results in no more than marked limitation of motion, with no showing of ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to November 8, 2019, for right ankle disability have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for a rating higher than 20 percent after November 8, 2019 for the right ankle disability have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.59, 4.71a, DC 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in April 2019 and remanded for additional development. That development having been completed; this claim is once again before the Board. While on remand, the RO granted the Veteran an increased evaluation to 20 percent for his service-connected right ankle disability effective November 8, 2019. It is noted that applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). As there are higher evaluations available for the service-connected right ankle disability and the increased evaluation does not cover the entire period of appeal, the Veteran's claim is still in controversy and shall continue to be adjudicated by the Board. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran's right ankle disability is rated under DC 5271, governing limitation of motion of the ankle. Under DC 5271, a 10 percent rating is warranted for moderate limitation of motion of the ankle, and a 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. The Board is cognizant that, prior to the February 7, 2021 amendment discussed in further detail below, DC 5271 itself does not provide for ratings pursuant to specific range of motion measurements in degrees, unlike diagnostic codes for other physical disabilities such as the knee or the back. 38 C.F.R. § 4.71a. However, the Board notes that it has been generally accepted that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. As such, the Board shall consider such limitations, but is not bound by them during this time period. The Board notes that normal range of motion for the ankle on dorsiflexion is to 20 degrees and to 45 degrees on plantar flexion. See 38 C.F.R. § 4.71a, Plate II. Other diagnostic codes for disabilities of the ankle follow. Ankylosis (bony fixation) of either ankle, depending upon the favorability of the angle of fixation, warrants evaluation from 20 to 40 percent. 38 C.F.R. § 4.71a, DC 5270. Ankylosis of the subastragalar or tarsal joint in good weight-bearing position warrants a 10 percent evaluation, while such ankylosis in a poor weight-bearing position warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, DC 5272. Malunion of the os calcis or astragalus with moderate deformity warrants a 10 percent evaluation, and marked deformity warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, DC 5273. Astragalectomy warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, DC 5274. The Board also notes that VA published a final rule amending its regulations on musculoskeletal disabilities, effective February 7, 2021. The amendment, in pertinent part, changed the rating criteria for DC 5271. See 85 Fed. Reg. 76453 (November 30, 2020). The amendments changed DC 5271 by characterizing moderate ankle limitation of motion as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and marked ankle limitation of motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. As the new criteria appear to be codifying the way in which the old criteria were previously generally applied, the Board will consider the matter using the same general standard throughout, particularly in light of the fact that the Veteran already has the maximum evaluation for the time period after February 7, 2021 and there is essentially no effect of the amendment for that period as a result. Except as otherwise provided, the effective date of an evaluation and award of compensation will be the date of receipt of claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 ; 38 C.F.R. § 3.400. The general rule with respect to the effective date of an award of increased compensation is that the effective date of award, "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110 (a). The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to that rule applies, however, where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to date of receipt of the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the claim, the effective date is the date of increase. 38 U.S.C. 5110 (b)(2); Harper v. Brown,10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC12-98 (1998). Prior to November 8, 2019 Here it is noted that the Veteran filed his claim for an increased evaluation of his right ankle disability on December 18, 2014. Following a review of treatment records, and the report of an examination conducted for VA purposes in February 2015, the Veteran was assigned a 10 percent disability evaluation for his ankle, based on painful motion, effective from the date of claim. Notably records dated more than one year prior to the December 2014 claim reflect complaints of painful motion. See October 2013 VA records. Since the increased symptoms occurred more than one year prior to the date of claim, the appropriate effective date for the increased rating is the date of claim. Outpatient treatment records, as well as February 2015 and March 2018 VA examinations, have all shown that the Veteran's ranges of motion for the right ankle have been within normal limits, but that he has documented painful motion. As such, a rating of 10 percent based upon painful motion is warranted throughout this period. In order to be assigned a rating of 20 percent, the Veteran's right ankle must show marked limitation of motion, or the equivalent of less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. As the record does not show such limitation or any other indication of marked impairment, other than the pain for which he is already rated, the criteria for a rating higher than 10 percent for the right ankle disability have not been met at any point during the period prior to November 8, 2019, and the Veteran's claim must be denied. From November 8, 2019 The Veteran has been assigned a 20 percent rating for marked impairment of the right ankle from November 8, 2019. Outpatient treatment records during this period have continued to show treatment for right ankle pain. The Veteran's November 2019 VA examination showed that he had limitation of dorsiflexion to 5 degrees as well as active movement against some resistance on muscle strength testing. As 5 degrees dorsiflexion is still higher than what is generally contemplated for a showing of marked limitation of motion, a rating in excess of 20 percent is not indicated. In order to be assigned a rating higher than 20 percent, the Veteran's right ankle must show ankylosis. As the record does not show the presence of this at any time pertinent to the period of appeal, the criteria for a rating higher than 20 percent for the right ankle disability have not been met from November 8, 2019, and the Veteran's claim must be denied. Extraschedular The Veteran's representative has brought up the issue of entitlement to an extraschedular evaluation in its September 2020 Brief. As such, the Board has also considered whether referral for an extraschedular evaluation is warranted. In exceptional cases, an extraschedular rating may be provided. See 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321 (b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment for Veteran's right ankle disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran is claiming that he is entitled to a higher rating due to pain. The schedular criteria provide for pain, to include resultant limitation of motion or impairment. 38 C.F.R. § 4.71a, DC 5271. Moreover, the Board is tasked with taking all of the Veteran's symptoms into consideration when evaluating the severity of musculoskeletal disabilities in order to determine whether the Veteran is experiencing additional functional loss in accordance with Deluca. Here, the Veteran's symptomatology and impairment are contemplated by the schedular rating criteria. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.