Citation Nr: 21064936 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 13-26 054 DATE: October 22, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of a left ankle/foot injury strain ("left ankle disability") is denied. FINDING OF FACT Throughout the appeal period, the Veteran's left ankle disability manifested with, at most, moderate limited motion of the ankle with no evidence of greater impairment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for residuals of a left ankle/foot injury strain ("left ankle disability") are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from September 1976 to September 1979 and in the United States Navy from November 1980 to April 1983. He had additional service from April 1983 to September 1987 which was determined to be dishonorable for VA purposes. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) was granted in a July 2021 rating decision. Thus, this claim is no longer on appeal and the Board does not have jurisdiction at this time. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. This claim was recently remanded in March 2021 for additional development, including to afford the Veteran a new VA examination, which was accomplished in July 2021. A review of the record shows substantial compliance with the Board's prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that his left ankle disability is worse than the rating currently assigned. By way of history, a March 2011 rating decision granted service connection for a left ankle disability and assigned a 10 percent rating effective June 17, 2010, the date that VA received the Veteran's claim for compensation. The Veteran filed an increased rating claim with VA in September 2011. The January 2012 rating decision on appeal continued the 10 percent rating. The Veteran timely appealed this determination to the Board. During the pendency of this appeal, rating decisions issued in July 2019 and December 2020 continued the 10 percent rating based on the Veteran's symptomology. Law and Regulations Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The United States Court of Appeals for Veterans' Claims (the Court) since has extended this practice even to established ratings, not just initial ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that the regulations for rating musculoskeletal injuries have changed effective February 7, 2021. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date, unless the regulation specifically provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, the Board is not precluded from applying prior versions of the applicable regulations to the period on or after the effective date of the new regulation if the prior versions were in effect during the pendency of the appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997)." As there is no indication that the rating criteria amendments were intended to be applied retroactively, the changes do not apply before the date they became effective. See Kuzma, 341 F.3d at 1329. The Veteran's left ankle disability is rated under 38 C.F.R. § 4.71a, DC 5271, for limitation of motion of the ankle. Under the old rating criteria, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. Under the new rating criteria, a 10 percent rating is warranted for moderate limited motion of the ankle, defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A maximum 20 percent rating is warranted for marked limited motion of the ankle, defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271). The Board notes that terms "moderate" and "marked" were not defined in VA regulations prior to February 7, 2021, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. The normal ranges of motion of the ankle are 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. According to VA's M21-1 Adjudication Procedures Manual, an example of moderate limitation of ankle motion is less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion, while an example of marked limitation is less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. See M21-1, Part III, Subpart iv, 4.A.3.o, Moderate and Marked LOM of the Ankle. Although the VA Adjudication Procedures Manual is not binding for VA purposes, the Board finds that the definitions of "moderate" and "marked" limited motion of the ankle are illustrative for the purposes of this decision and is in line with the updated rating criteria definitions. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). In addition, inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. When assigning a disability rating, it is necessary to consider functional loss due to flare-ups. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Factual History A review of the post service VA treatment records note complaints of left ankle pain. However, several treatment records in December 2011, October 2013, June 2014, October 2014, December 2018, March 2019, March 2020, May 2020, September 2020, and January 2021 reported that the Veteran ambulated with a steady normal gait. The Veteran underwent a VA examination in January 2011. The examiner noted complaints of pain, stiffness, and swelling of the left ankle joint, but there were no reports of instability, weakness, incoordination, decreased speed of joint, subluxation, locking episodes, effusions, or flare ups. Range of motion (ROM) testing revealed left dorsiflexion limited to 18 degrees and plantar flexion limited to 40 degrees with no objective evidence of pain on active motion. The Veteran underwent a second VA examination in January 2012. He was diagnosed with residuals, left ankle strain. The examiner noted the Veteran's reports of chronic worsening ankle pain that is exacerbated by prolonged standing or walking. However, he denied any reports of flare ups. ROM testing revealed left dorsiflexion limited to 10 degrees and left plantar flexion limited to 35 degrees based on objective evidence of painful motion. ROM measurements after repetitive testing revealed dorsiflexion of 15 degrees and plantar flexion of 40 degrees. Additionally, the examiner noted additional functional loss, such as less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, disturbance of locomotion, and interference with sitting, standing and weightbearing. Clinical examination revealed localized tenderness or pain on palpation. Muscle strength testing revealed active movement against some resistance on left dorsiflexion and plantar flexion. No evidence of joint instability or ankylosis was found. The examiner noted the Veteran's use of a brace and walker but found no evidence of functional impairment of such an extremity that no effective function remains other than that which would be equally well served with amputation. The Veteran underwent a third VA examination in December 2020. He reported worsening ankle pain and stiffness with moderate flare ups that are precipitated by prolonged standing. In addition, he reported functional impairment due to difficulty with standing, walking or running for long periods of time. ROM testing revealed left dorsiflexion limited to 15 degrees and plantar flexion limited to 35 degrees. In addition, the examiner noted pain that caused functional loss on dorsiflexion and plantar flexion. Also, the examiner noted evidence of pain on weight bearing, but found no objective evidence of localized tenderness or pain on palpation. Additional ROM testing revealed left dorsiflexion limited to 10 degrees and plantar flexion limited to 30 degrees after three repetitions, and left dorsiflexion limited to 5 degrees and plantar flexion limited to 25 degrees based on repetitive use over time and during flare ups. No additional factors were found to be contributing to the left ankle disability. Muscle strength was found to be normal with no evidence of muscle atrophy or ankylosis. Joint stability was found to be normal. The examiner noted the use of a left ankle brace for support. The examiner noted that the left ankle disability impacted the Veteran's ability to work due to difficulty with prolonged walking or climbing stairs. The Veteran underwent a fourth VA examination in July 2021. The examiner noted reports of pain, swelling, and discomfort with severe flare ups that occur every day and additional functional impairment in difficulty bending or manipulating the left ankle. However, the Veteran did not report or have a history of left ankle instability. ROM testing revealed left dorsiflexion limited to 10 degrees and plantar flexion limited to 20 degrees based on active ROM. Passive ROM testing was noted to be the same as active ROM. ROM testing also revealed dorsiflexion limited to 5 degrees and plantar flexion limited to 10 degrees based on objective evidence of pain on weight bearing, active ROM, and passive ROM that causes functional loss. The examiner noted dorsiflexion limited to 5 degrees and plantar flexion limited to 10 degrees based on repetitive use over time and during flare ups. The examiner also noted additional contributing factors, such as interference with standing and disturbance of locomotion. No evidence of muscle atrophy or ankylosis was found. Joint stability tests were found to be normal. The examiner noted the Veteran's regular use of a cane for ankle and knee pain. The examiner also found that the left ankle disability impacted the Veteran's ability to work due to being unable to walk for more than a block without stopping for pain, cannot walk up and down stairs, and cannot stand for more than 15 minutes at a time. The Board observes that most of the VA examination reports do not include the passive ROM for the left ankle. Passive ROM is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated. It is usually greater than active ROM because the integrity of the soft tissue structures does not dictate the limits of movement. Comparisons between passive ROM and active ROM provide information about the amount of motion permitted by the associated joint structures (passive ROM) relative to the individual's ability to produce motion at a joint (active ROM). Cynthia Norkin & D. Joyce White, Measurement of Joint Motion: A Guide to Goniometry 8-9 (2016). Here, there is no indication that passive ROM in this case would be more limited than active. As such, the Board concludes that the absence of findings related to passive ROM does not render the available evidence inadequate for rating purposes and will evaluate the Veteran's joint range of motion based on the measurements recorded for active ROM and look at the Veteran's total left ankle disability picture. Analysis Having reviewed the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's left ankle disability under both the old and new rating criteria. In order to warrant the maximum rating of 20 percent under DC 5271, the evidence must establish marked limitation of motion. As defined above, the Board defines marked limitation of motion as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. The evidence of record reveals that, at most, the Veteran had dorsiflexion limited to 5 degrees, with normal range of motion being 20 degrees. In addition, plantar flexion was limited to, at most, 10 degrees, with normal range of motion being 45 degrees. Based on these measurements, the Board finds that the Veteran's left ankle disability has only manifested in moderate limitation of motion, as defined under the old and new rating criteria. As such, an increased rating under DC 5271 must be denied. 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. The evidence does not establish that the Veteran has astragalectomy, malunion of os calcis or astragalus, or ankylosis. As such, a rating is not warranted under DCs 5270, 5272, 5273 or 5274. The Board acknowledges that under 38 C.F.R. § 4.59, examination of certain joints should include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). The most recent VA examination contained complete assessments of pain on both active and passive motion, in weight-bearing and non-weight-bearing. To the extent that other examinations cited herein did not explicitly provide these findings, the Board reiterates the pertinent ratings of the ankle with or without symptoms such as pain. Thus, any deficiency of the ankle examinations of record in this regard is harmless, as assessment of pain in accordance with 38 C.F.R. § 4.59 would not provide a basis for the assignment of any higher rating. Additionally, to the extent that earlier examinations discussed herein did not explicitly provide findings of pain on both active and passive motion, or in weight-bearing and non-weight-bearing, they are nonetheless the most probative evidence available with regard to the severity of the disabilities at the time those examinations were conducted. Any additional medical opinion with regard to those periods would be retrospective and entitled to less probative value than the contemporaneous range of motion evidence already of record. Therefore, remand for any additional retrospective opinion is not warranted. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand is unnecessary where it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). In light of the aforementioned evidence, the Board determines that a rating of 10 percent, but no higher, is warranted for the Veteran's left ankle disability throughout the appeal period. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan, 451 F.3d 1331; Washington, 19 Vet. App. at 368-69. The Veteran contends that his left ankle symptoms warrant a higher rating. The Board acknowledges that the Veteran is competent to give evidence about what she observes or experiences. Layno, 6 Vet. App. 465. That stated, these allegations of worsening symptomology are undercut by the other evidence of record, which does not favor a finding that the Veteran is entitled to a higher rating than the 10 percent currently assigned for his left ankle disability during the appeal period based on the symptomology present. His current symptomology is encapsulated in the current rating assigned under the Rating Schedule, with no evidence of symptomology warranting extra-schedular consideration. Since a preponderance of the evidence weights against the Veteran, he is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). Therefore, his claim for an increased rating is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.