Citation Nr: 21063984 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-38 958 DATE: October 18, 2021 ORDER Beginning November 20, 2019, entitlement to a 30 percent rating, but no higher, for a left ankle disability is granted. FINDING OF FACT Beginning November 20, 2019, the Veteran's left ankle disability has been manifested by ankylosis where dorsiflexion is fixed between 0 and 10 degrees. CONCLUSION OF LAW Beginning November 20, 2019, the criteria for entitlement to a 30 percent rating, but no higher, for a left ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.20, 4.59, 4.71a, Diagnostic Codes 5270, 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1981 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified before the undersigned at a hearing in St. Petersburg, Florida. A transcript of his testimony has been associated with the claims file. Most recently, this matter was last before the Board in January 2020. At that time, the Board restored entitlement to a 20 percent rating for a left ankle disability, which the RO had reduced in an earlier rating decision. The Board also clarified that, although the Veteran had not previously perfected a substantive appeal with respect to a higher rating for his left ankle disability, the filing of a substantive appeal had been waived by VA pursuant to Percy v. Shinseki, 23 Vet. App. 37, 42-45 (2009) (citing Beyrle v. Brown, 9 Vet. App. 24 (1996)). In the January 2020 decision, the Board remanded his appeal so the RO could afford him with a contemporaneous VA examination concerning the severity of his left ankle disability. The matter now returns to the Board. As a preliminary matter, the Board notes that the RO has complied with the Board's January 2020 remand directives, namely providing the Veteran with proper notice regarding his claim for a higher rating, obtaining outstanding VA evidence and private treatment records, and scheduling a new VA examination for his left ankle. As such, there has been substantial compliance with the Board's remand directives, and no remand is necessary for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating The Veteran argues that he is entitled to a higher rating for his left ankle disability, which is currently rated at 20 percent disabling under diagnostic code 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic code 5010 pertains to degenerative arthritis, while diagnostic code 5271 pertains to limitation of ankle motion. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Where, as here, entitlement to service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence The Board will first review the relevant evidence associated with the claims file during the period on appeal. This includes VA examinations, disability benefits questionnaires submitted by the Veteran, VA treatment records, private treatment records, and hearing testimony. The Veteran attended a February 2016 VA examination, where he reported that prolonged standing caused severe ankle pain. The VA examiner stated that he did not report flare-ups but noted that he reported that he had difficulty walking due to ankle pain. Range of motion testing was not performed on the right ankle, but in the left ankle initial range of motion was from 0 to 15 degrees on dorsiflexion and from 0 to 30 degrees on plantar flexion. There was pain on both dorsiflexion and plantar flexion that caused functional loss, as well as pain on weight-bearing. He was not examined after repetitive use, but the VA examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The VA examiner stated that no ankylosis was present; no joint stability testing was performed. In a February 2018 private treatment record, the Veteran reported that his entire left ankle was in pain and described the pain as sharp, achy, sore, and stabbing. He denied being able to bear weight. He stated that his pain was unbearable and had worsened since its onset to the point it had affected his daily activities. Additionally, he reported edema, tenderness to palpation, stiffness, weakness, and limpness. The pain was exacerbated with ankle movements like walking but improved with rest. Range of motion was equal and symmetrical bilaterally. In May 2018, he underwent an additional VA examination. The Veteran explained that his left ankle disability had worsened since his last examination and that he was told by a podiatrist that he might need an ankle replacement within the year. He described symptoms of constant sharp, aching pain and numbness. His pain usually occurred daily and was severe enough to wake him up. He was treated with steroid injections and pain medications such as Tramadol. The May 2018 VA examiner indicated in the examination report that the Veteran had not reported flare-ups. On range of motion testing, dorsiflexion in the left ankle was from 0 to 20 degrees, while plantar flexion was from 0 to 35 degrees. Pain was noted on examination but did not cause functional loss. There was no evidence of pain on weight-bearing. The VA examiner indicated that the Veteran was not being observed after repetitive use but that he could not estimate additional loss of range of motion after repeated use because he was not observing it. No ankylosis was noted. No instability or dislocation was suspected, and no stability testing was performed. The examiner noted that there was objective evidence of pain on passive range of motion testing and that the opposing joint was undamaged with no abnormalities. In a May 2019 VA examination, the Veteran again reported that his condition had gotten worse. He reiterated that he was using medications such as Tramadol and reported flare-ups of his left ankle. He characterized these as pain in the morning and swelling throughout the day. He indicated he had a hard time doing prolonged walking and standing. Motion in the right ankle was normal, while left ankle dorsiflexion was from 0 to 15 degrees and plantar flexion was from 0 to 30 degrees. Pain was noted on examination and caused functional loss during dorsiflexion and plantar flexion, with evidence of pain on weight-bearing. The Veteran was able to perform testing after three repetitions, but range of motion was from 0 to 10 degrees on dorsiflexion and from 0 to 25 degrees on dorsiflexion. Although he was not being examined after repetitive use or during a flare-up, the VA examiner noted that pain and lack of endurance significantly limited functional ability. In terms of additional loss of range of motion, the VA examiner estimated that dorsiflexion would be from 0 to 5 degrees and plantar flexion from 0 to 20 degrees. During flare-ups, the VA examiner estimated that dorsiflexion was limited to 5 degrees on dorsiflexion and 15 degrees on plantar flexion. The VA examiner indicated that there was less movement than normal in the ankle, as well as interference with standing, but no ankylosis was present. Instability was not suspected, and no joint stability testing was performed. In the remarks portion of the examination report, the VA examiner noted there was objective evidence of pain on passive range of motion and non-weight-bearing, and that the opposite joint was undamaged and had been tested. At his October 2019 Board hearing, the Veteran noted that his ankle disability had not improved over time and that he had to frequently ice his swollen ankle. The Veteran submitted a disability benefits questionnaire filled out by his podiatrist in November 2019. In that questionnaire, initial range of motion on plantar flexion was to 13 degrees, while dorsiflexion was to 7 degrees. The examiner noted that abnormal range of motion contributed to functional loss. The examiner also stated that there was additional loss of range of motion during flare-ups or repeated use but provided the same range of motion findings as on initial range of motion testing. Additionally, the examiner indicated that ankylosis was present at 13 degrees of plantar flexion and 7 degrees of dorsiflexion. Movements were painful on active and passive motion and on weight-bearing and non-weight-bearing. Functional loss was characterized as pain and stiffness that limited his ability to walk for prolonged periods. The examiner also noted that there were additional symptoms, such as less movement than normal, incoordination, pain on movement, swelling, and instability of station. In a May 2020 private treatment record, the Veteran reported symptoms similar to those he reported in his February 2018 private treatment record. In addition, the records indicated that there was significant instability along the left ankle upon inversion and eversion of the ankle with posterior anterior drawer test. The Veteran submitted another disability benefits questionnaire completed by a podiatrist in May 2020. The questionnaire indicates that he has flare-ups, but it does not contain any specific findings describing them. However, the examiner indicated that his left ankle disability became painful and limited his mobility after standing or walking for more than 30 minutes. Both the right and left ankle joint were tested. On initial range of motion testing, dorsiflexion was to 0 degrees and plantar flexion was to 20 degrees in the left ankle. The Veteran was unable to perform repetitive use testing. The questionnaire reflects that range of motion was painful on passive or active motion and on weight-bearing or non-weight-bearing. The examiner noted that there was less movement than normal, more movement than normal, pain on movement, swelling, and instability of station. Additionally, the examiner indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups and after repeated use over time but stated that the measurements on range of motion would be the same as on initial range of motion testing. Ankylosis was present at 0 degrees on dorsiflexion and at 20 degrees on plantar flexion. Last, the Veteran underwent another VA examination in November 2020. At that examination, the Veteran stated that he had difficulty with weight-bearing on his left ankle for prolonged periods. He had a history of using an ankle brace due to limping and had a history of injections with minimal improvement. He was currently exploring surgical interventions with an orthopedic surgeon. His current symptoms included sharp or aching pain, swelling, and stiffness, while his current treatments included ice and topical treatments. The VA examiner indicated that he did not report flare-ups, but he characterized his functional loss as difficulty with walking or standing for long times, and that he had to rest often, could not do physical exercises, and woke up and went to bed in pain. On initial range of motion testing, the right ankle had normal range of motion. The left ankle had dorsiflexion to 10 degrees and plantar flexion to 25 degrees with pain on examination that caused functional loss. There was difficulty with weight-bearing and an unsteady gait. Due to a suboptimal effort, he was unable to perform repetitive use testing with at least three repetitions. Pain, lack of endurance, and incoordination significantly limited functional ability on repeated use over time; range of motion was estimated to be 5 degrees on dorsiflexion and 20 degrees on plantar flexion. The VA examiner did not note any ankylosis was present. Although ankle stability or dislocation was suspected, no laxity was noted. In the remarks portion of the examination, the VA examiner noted that there was no objective evidence of pain on non-weight-bearing but objective evidence of pain on passive motion. Rating criteria Normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Veteran's left ankle disability is currently assigned a 20 percent rating under diagnostic code 5010-5271. Under diagnostic code 5271, a 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. This is the maximum rating available under diagnostic code 5271. As such, the Board will consider whether a higher rating is available under another diagnostic code, 5270, pertaining to disability manifested by ankylosis of the ankle. Under Diagnostic code 5270, a minimum 20 percent rating is assigned for ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle where plantar flexion is fixed between 30 and 40 degrees, or dorsiflexion is fixed between 0 and 10 degrees. A maximum 40 percent rating is warranted where plantar flexion is fixed at more than 40 degrees, or where dorsiflexion is fixed at more than 10 degrees with abduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Other potentially applicable diagnostic codes include 5272 (ankylosis of the subastralgar or tarsal joint), 5273 (malunion of the os calcis or astralgus), and 5274 (astralgalectomy). 38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5273, and 5274. As the Veteran has not been shown to have these disabilities at any time during the appeal period, however, these diagnostic codes are not applicable herein. Analysis Having reviewed the relevant evidence of record, the Board finds that a disability rating of 30 percent, but no higher, is warranted under diagnostic code 5270 from November 20, 2019, based on ankylosis in the ankle where dorsiflexion is fixed between 0 and 10 degrees. This is based on the date that entitlement to a 30 percent rating first arose (i.e., based on the results of the November 2019 disability benefits questionnaire he submitted indicating that ankylosis at 0 degrees of dorsiflexion was present). When rating disabilities using diagnostic codes that provide a rating on the basis of loss of range of motion, VA must consider, to the extent possible, the degree of additional loss of function due to pain, weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45. To that end, the Board has considered the adequacy of the previous VA examinations in the record. Pursuant to the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), the final sentence of 38 C.F.R. § 4.59 requires that VA examinations including joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing, and, if possible, with range of motion measurements of the opposite, undamaged joint. The various VA examinations in the record contain sufficient findings to satisfy this requirement. To the extent that the February 2016 VA examination does not contain separate findings on passive motion and active motion, weight-bearing and non-weightbearing, and the right ankle joint, the record indicates that he could move on his own free will. This indicates that active motion was considered. Additionally, the VA examiner noted that there was pain on weight-bearing. It stands to reason that there would also be pain on non-weight-bearing as well. As such, these findings sufficiently satisfy the holding in Correia. VA examiners must also determine, where possible, the degree of additional range of motion that is lost due to pain on use or during flare-ups. If a veteran is not experiencing a flare-up during an examination, the examiner must instead elicit information from the veteran regarding the severity, frequency, duration, or functional loss manifestations of the flare-ups, or indicate whether such information could be gleaned from medical records or other sources available. Sharp v. Shulkin, 29 Vet. App. 26 (2017). To that end, it is somewhat unclear from the available evidence whether the Veteran experiences flare-ups of his disability or not. In an informal hearing presentation, the Veteran's representative stated that he does not experience flare-ups, but rather that he is constantly in pain. Indeed, various examiners in the record have indicated that the Veteran did not report flare-ups but endorsed constant pain. However, the May 2019 VA examiner and the clinicians who completed the November 2019 and May 2020 private disability benefits questionnaires reported that the Veteran did experience flare-ups. Affording him the benefit of the doubt, the Board finds that he does experience flare-ups. Remand to obtain additional opinions regarding the impact of flare-ups is not warranted, however, because he described the pain in his left ankle in similar terms in the February 2016, May 2018, May 2019, and November 2020 VA examinations, and range of motion testing revealed relatively similar results. As such, the Board will assume that February 2016, May 2018, and November 2020 VA examination results would reflect similar additional range of motion loss when accounting for flare-ups as on the May 2019 VA examination. This obviates the need for a remand to obtain findings on whether there is additional loss of range of motion during flare-ups based on the findings of the February 2016, May 2018, and November 2020 VA examinations. Regarding repeated use over time, the February 2016 VA examiner indicated that functional ability was not significantly limited after repeated use over time. The May 2019 and November 2020 VA examiners, on the other hand, indicated that functional ability was significantly limited after repeated use over time and that range of motion would be limited to 5 degrees on dorsiflexion and 20 degrees on plantar flexion. The May 2018 VA examiner indicated that functional ability was significantly limited with repeated use over time but also that no estimate could be provided in terms of degrees of motion without observing the Veteran after repeated use over time. This rationale is inadequate, as the holding in Sharp makes clear that it is indeed possible to make such findings based on other available evidence in the record. As with flare-ups, however, the findings on the May 2018, May 2019, and November 2020 examinations were relatively similar. As such, the Board will assume that the May 2018 VA examination would have yielded similar findings with respect to additional range of motion loss after repeated use. Remand is therefore unnecessary to obtain additional findings with respect to repeated use over time. Ultimately, having considered the requirements of Correia and Sharp, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions was met. 38 C.F.R. § 3.159(c)(4); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Having addressed the adequacy of the VA examinations of record, the Board will turn to the appropriate rating for the Veteran's left ankle disability. With respect to limitation of motion, VA examination findings from prior to November 20, 2019, suggest that range of motion was limited to approximately 5 degrees on dorsiflexion during flare-ups and after repeated use prior to November 20, 2019. This is ultimately consistent with the 20 percent disability rating under diagnostic code 5271 that was already in effect. Additionally, the evidence from prior to November 20, 2019, does not indicate that either ankylosis or its functional equivalent was present. Indeed, even when accounting for the provisions of 38 C.F.R. §§ 4.40 and 4.45, regarding additional functional loss, no ankylosis was present based on the results from his February 2016, May 2018, or May 2019 VA examinations. Moreover, the Veteran did not indicate in VA or private treatment records that he experienced ankylosis or its functional equivalent when he described the functional limits caused by his disability. Rather, he indicated that his left ankle disability made it difficult to walk or stand for prolonged periods. Essentially, motion, though significantly limited, was indeed possible on dorsiflexion and plantar flexion during this point in the period on appeal. Beginning on November 20, 2019, however, a higher rating under diagnostic code 5270 became available based on the findings in the November 2019 disability benefits questionnaire, which noted ankylosis at 7 degrees dorsiflexion. This is consistent with the results of the May 2020 disability benefits questionnaire, which reflected ankylosis at 0 degrees dorsiflexion. The Board acknowledges that a subsequent VA examiner did not find that any ankylosis was present during a November 2020 VA examination. Resolving all reasonable doubt in the Veteran's favor, however, the Board finds that the evidence is in relative equipoise as to whether a 30 percent rating is warranted during this portion of the period on appeal. As such, the Board finds that ankylosis where dorsiflexion is limited to between 0 and 10 degrees was present beginning November 20, 2019. In so finding, the Board has also considered whether a rating in excess of 30 percent is warranted under diagnostic code 5270. Nonetheless, even when considering the additional loss of function under 38 C.F.R. §§ 4.40 and 4.45, the Board finds that the Veteran does not exhibit ankylosis where plantar flexion is fixed at more than 40 degrees or where dorsiflexion is fixed at more than 10 degrees with abduction, inversion, or eversion deformity. The Board acknowledges that the evidence reflects symptoms such as instability and less movement than normal in the left ankle. Regardless, the evidence of record does not suggest that ankylosis or the functional equivalent of ankylosis of this severity is present. Indeed, the November 2020 VA examination report does not suggest ankylosis is present at all. Moreover, the November 2019 and May 2020 disability benefits questionnaires do not indicate that there was ankylosis where plantar flexion was limited to 40 degrees or more or dorsiflexion to more than 10 degrees, even when accounting for the additional functional loss caused by pain, fatigue, weakness, or incoordination. Accordingly, a rating of 30 percent, but no higher, is warranted from November 20, 2019. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.