Citation Nr: 21063455 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-18 078 DATE: October 14, 2021 ORDER Entitlement to a rating in excess of 10 percent for left ankle degenerative joint disease is denied. FINDING OF FACT The Veteran's left ankle degenerative joint disease has not manifested in marked limitation of motion or less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, nor does it involve two or more major joints or minor joint groups with occasional incapacitating exacerbations. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left ankle degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from September 1970 to January 1974 and active service in the United States Army from September 1976 to May 1993. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from a January 2015 rating decision in which the Agency of Original Jurisdiction (AOJ) denied entitlement to a compensable rating for the Veteran's service-connected left ankle degenerative joint disease. In December 2019, the Board remanded the Veteran's claim for further development. Subsequently, the AOJ issued a new rating decision in March 2020, granting entitlement to a 10 percent rating for the Veteran's left ankle degenerative joint disease from October 31, 2014 (date of claim for increased rating). The March 2020 rating decision also granted service connection for hypertension. Such represented a complete grant of that appealed issue. 1. Entitlement to a Rating in Excess of 10 Percent for Left Ankle Degenerative Joint Disease Disability ratings are determined in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions, that were not previously considered by the AOJ. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. The Veteran's left ankle degenerative joint disease is rated under Diagnostic Code 5003-5215. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When the limitation of motion is noncompensable under the appropriate diagnostic code, a 10 percent rating is applicable to each major joint or group of minor joints affected by limitation of motion, to be combined, not added. A 20 percent rating is warranted under Diagnostic Code 5003 where there is limitation of motion with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The aforementioned revisions to the criteria for evaluating musculoskeletal disorders did not change the rating criteria under Diagnostic Code 5003, but beginning February 7, 2021, it contemplates "degenerative arthritis, other than post-traumatic." Limitation of motion of the ankle is rated under Diagnostic Code 5271. Prior to February 7, 2021, a 10 percent rating was warranted for moderate limited motion of the ankle and a 20 percent rating was warranted for marked limited motion of the ankle. The words "moderate" and "marked" are not defined in the rating schedule. Under the rating criteria in effect from February 7, 2021, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Normal range of motion for the ankle is from 0 to 20 degrees dorsiflexion and from 0 to 45 degrees plantar flexion. 38 C.F.R. § 4.71A, Plate II. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6. 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. Additionally, 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 Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Nonetheless, even when the background 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, 5 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (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. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left ankle degenerative joint disease. The Veteran has had two VA examinations during the period on appeal, which began on October 31, 2014, the date on which VA received his claim for an increased rating. These examinations occurred in January 2015 and February 2020. During the January 2015 examination, the Veteran exhibited dorsiflexion to 10 degrees and plantar flexion to 40 degrees. The examiner stated that the Veteran did not have any functional loss or functional impairment of the left ankle. In February 2020, the Veteran had dorsiflexion to 10 degrees and plantar flexion to 45 degrees, and the examiner noted that the Veteran struggled to pick up heavy objects or walk or stand for prolonged periods of time. While the examiners did not characterize the Veteran's left ankle degenerative joint disease as either moderate or marked, the Board concludes that this evidence does not more closely resemble marked limitation of motion of the ankle. When assigning a rating based on impaired motion, the Board must consider functional loss due to pain and weakness that causes additional disability beyond that reflected on range of motion measurements. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 206. The Board will consider the effects of weakened movement, excess fatigability, and incoordination when assigning a rating. 38 C.F.R. § 4.45. When he was examined in January 2015, the Veteran occasional swelling of the ankle with activity. He stated he was no longer able to skydive or teach martial arts like he did when he was younger. In that regard, and in also considering the Veteran's report of constant left ankle pain, the VA examiner determined that there was no objective evidence of painful motion upon examination. She also found no fatigue, lack of endurance, weakness, or incoordination contributing to functional loss after repeated use over time. In February 2020, the Veteran reported that his ankle pain limited his ability to pick up heavy objects. No other limitations were reported. The examiner concluded that pain caused functional loss after repeated use over time. He estimated that, after repeated use over time, the Veteran would have dorsiflexion to 10 degrees and plantar flexion to 45 degrees. This measurement, however, does not warrant a rating in excess of 10 percent, as it is still below the level of impairment required for a 20 percent rating. The Board has also considered the effects of flare-ups on the Veteran's functioning. See Sharp, 29 Vet. App. at 32. Such flare-ups must be quantifiable and result in a limitation of motion or function beyond that contemplated by the already provided evaluation. The Veteran did not report having flare-ups during his January 2015 VA examination. In February 2020, he did report experiencing flare-ups at night when laying down. The examiner noted that pain causes functional loss during flare-ups and estimated dorsiflexion to 10 degrees and plantar flexion to 45 degrees during flare-ups. As this does not more closely resemble marked limitation of motion of the ankle, a rating in excess of 10 percent is not warranted based on functional loss during flare-ups either. The Board acknowledges the Veteran's lay reports of symptoms, including his April 2017 statement that he has experienced painful motion and moderate limitation of motion of the left ankle throughout the period on appeal. However, even considering the Veteran's lay reports of symptoms and functional loss due to painful motion and weakness, the degree of additional limitation reflected by the characterization of his pain and limitation of motion would not result in symptoms more nearly approximating marked limitation of motion. In fact, the Veteran himself characterized his limitation of motion as "moderate" rather than marked. Furthermore, at no point has the evidence shown that the Veteran's motion was limited to less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. A 20 percent rating is not warranted under the February 7, 2021 changes to Diagnostic Code 5271. The Veteran is also not entitled to a higher rating under Diagnostic Code 5003, which provides for a 20 percent rating where there is limitation of motion with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71A, Diagnostic Code 5003. While the Veteran is currently service connected for right hip degenerative joint disease under Diagnostic Code 5010-5255, right elbow degenerative joint disease under Diagnostic Code 5010-5209, and right ankle degenerative joint disease under Diagnostic Code 5010-5271 in addition to his left ankle degenerative joint disease currently on appeal, there is no evidence that he experiences occasional incapacitating exacerbations as required for a 20 percent rating under Diagnostic Code 5003. VA treatment records show that he sought treatment for one episode of ankle pain in February 2020, although he later reported that this was due to twisting his ankle. Moreover, even assuming this pain was due to his degenerative joint disease, it was not incapacitating, as he was able to stand independently and bear limited weight on his left side. The Board notes that in the Veteran's March 2015 Notice of Disagreement, he specifically stated that he was seeking a 40 percent rating for his service-connected left ankle degenerative joint disease. A 40 percent rating is not warranted for the ankle unless there is ankylosis of the ankle in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71A, Diagnostic Code 5270. As there is no evidence that the Veteran experiences ankylosis of the ankle or functional impairment that approximates ankylosis, a 40 percent rating cannot be awarded. The Veteran's regular use of an ankle brace has been considered as well. However, as it was noted in the February 2020 examination that the brace was used to alleviate pain and left ankle arthritis, which was addressed by that examiner, and because stability testing was reported to be normal, the prescription and use of the brace is contemplated by the current 10 percent rating. Put another way, the use of the brace is provide relief from the loss of motion and arthritis symptoms rather than separate and distinct symptoms not addressed under Diagnostic Code 5271. Consideration has also been given as to 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 Veteran's symptoms would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.71A. There is no evidence of ankylosis of the subastragalar or tarsal joints or malunion of the os calcis or astragalus, nor has the Veteran undergone an astragalectomy. There is likewise no evidence of nonunion or malunion of the ankle to support the assignment of a higher rating under Diagnostic Code 5262. 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 left ankle degenerative joint disease. 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. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.