Citation Nr: 21066010 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-08 341 DATE: October 28, 2021 ORDER Partial vacatur of the April 2021 Board Decision, which granted, in pertinent part, entitlement to a 20 percent rating for service-connected status post (s/p) right ankle injury with degenerative changes is warranted; to this extent only, the Board's April 2021 decision is vacated. Entitlement to an evaluation in excess of 10 percent for service-connected s/p right ankle injury with degenerative changes is denied. FINDINGS OF FACT 1. In April 2021, the Board granted, in pertinent part, a rating of 20 percent for service-connected s/p right ankle injury with degenerative changes without consideration of the Veteran's preexisting disability rating pursuant to 38 C.F.R. § 3.322. 2. By its own motion, the Board finds that the prior grant of 20 percent for the right ankle disability was erroneous, and a partial vacatur of the April 2021 decision is warranted. 3. Throughout the appeal period, the Veteran's right ankle disability has been manifested by symptoms of pain, stiffness, and marked limitation of motion. 4. At the time of the initial grant of service connection, the Veteran's disability was considered 10 percent disabling due to a previous fracture of the right ankle with an open reduction and internal fixation. Following separation, his disability was considered 20 percent disabling due to traumatic aggravation as evidenced by accelerated arthritis. 5. As the Veteran's disability has been evaluated as less than 100 percent disabling, the pre-service percentage is deducted prior to assigning a disability evaluation for his service-connected right ankle condition. CONCLUSIONS OF LAW 1. The criteria for partial vacatur of the April 2021 Board Decision have been met. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000. 2. The criteria for establishing entitlement to an evaluation in excess of 10 percent for service-connected status post right ankle injury with degenerative changes have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.322, 4.1, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71 (a), Diagnostic Code 5271-5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active-duty service with the United States Navy from February 2005 to November 2005. In recognition of his exemplary service, he was awarded the Global War on Terrorism Service Medal, Iraq Campaign Medal, Armed Forces Reserve Medal with "M" device, and Sea Service Deployment Ribbon. This claim stems from April and August 2013 rating decisions. Pursuant to an October 2020 Board decision, this matter was remanded for additional development to include scheduling the Veteran for a new VA examination. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159 (b). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER TO VACATE The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000. In May 2021, the Board received a request for clarification regarding its April 2021 Decision, to the extent it granted an evaluation of 20 percent disabling for the Veteran's service-connected s/p right ankle injury with degenerative changes. In pertinent part, the request sought guidance regarding a prior rating decision, dated March 12, 2008, which granted service connection for s/p right ankle injury with degenerative changes based upon aggravation of a preexisting disability and assigned a pre-service rating of 10 percent disabling. On review of the record, the Board notes that the April 2021 Decision omitted discussion of the pre-service evaluation or deduction for pre-service disability. Therefore, corrective action is required. Accordingly, the Board submits a motion for a partial vacate of the April 2021 decision to the extent it granted an evaluation of 20 percent disabling for the Veteran's service-connected s/p right ankle injury with degenerative changes. See 38 C.F.R. § 3.322. As to the remaining issue addressed therein, the Board's action is not disturbed. Accordingly, the April 22, 2021, grant of an evaluation of 20 percent disabling for the Veteran's service-connected s/p right ankle injury with degenerative changes is vacated. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness which causes additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Additionally, evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. 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. Id.; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an evaluation in excess of 10 percent for service-connected s/p right ankle injury with degenerative changes The Veteran contends that the current severity of his service-connected right ankle disability warrants a higher evaluation. As a preliminary matter, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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 case, the Veteran's right ankle disability has been evaluated as 10 percent disabling, under Diagnostic Code 5271-5010. See 38 C.F.R. § 4.71a. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71 (a), Plate II. Prior to the regulatory change, Diagnostic Code 5010 provides that arthritis due to trauma is to be evaluated as degenerative arthritis pursuant to Diagnostic Code 5003. Diagnostic Code 5003 indicates that degenerative arthritis substantiated by x-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. As of February 7, 2021, Diagnostic Code 5010, post-traumatic arthritis is now rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. Similarly, prior to the regulatory change, Diagnostic Code 5271 provided a 10 percent evaluation for "moderate" limitation of motion. An evaluation of 20 disabling requires a showing of "marked" limitation of motion. See 38 C.F.R. § 4.71a. The Board notes that the words "moderate" and "marked" are not defined in the VA Rating Schedule prior to the regulatory changes. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. As of February 7, 2021, the amended criteria for Diagnostic Code 5271 provide an evaluation of 10 percent disabling for moderate limitation of motion described as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. An evaluation of 20 percent disabling is assigned for marked limitation of motion described as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Id. Additionally, the Board observes that the initial grant of service connection was based upon a March 2008 rating decision. Therein, the Veteran's right ankle disability was assigned an evaluation of an evaluation at 10 percent effective November 20, 2005. In reaching the stated finding, the RO noted that he suffered a right ankle fracture prior to enlistment, at discharge the condition was deemed permanently worsened as due to active service. Prior to service, the Veteran suffered a fracture of the right ankle with an open reduction and internal fixation. Based upon the evidence of record, the disability was considered 10 percent disabling at enlistment. At separation, the disability was deemed 20 percent disabling due to traumatic aggravation of the disability via acceleration of the arthritis. In accordance with 38 C.F.R. § 3.322, the pre-service percentage is always deducted before assigning any service-connected evaluation less than 100 percent disabling. In this case, the Veteran has been afforded multiple VA examinations. On examination in January 2014, a current diagnosis of a right ankle sprain was indicated. During the clinical interview, the Veteran reported a fracture to the right ankle that was surgically repaired using screws prior to enlistment. During active service, he twisted his right ankle and suffered persistent heel and calf pain. No new surgeries or trauma was reported. The Veteran denied any experience with flare-ups. Range of motion of the right ankle revealed plantar flexion limited to 20 degrees, and dorsiflexion limited to 10 degrees. Painful motion was observed with plantar flexion. No additional functional loss or loss of range of motion was noted with repetitive use testing. Additional factors contributing to the Veteran's right ankle disability were listed as less movement than normal, pain with movement, swelling, and disturbance of locomotion of the right ankle. Muscle strength testing yielded normal findings. The was no evidence of localized tenderness or pain to palpation. Joint stability testing revealed normal findings. There was no evidence of ankylosis, muscle atrophy or crepitus. Prior surgical procedures included placement of screws to repair a right ankle fracture in 1981. The Veteran endorsed regular use of orthotics. Diagnostic testing confirmed degenerative arthritis in the right ankle. No functional impact was specifically identified. The Board subsequently deemed the April 2017 and June 2019 examinations inadequate and remanded in order to obtain medical opinions compliant with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). As a result, in October 2020, the Veteran's claim was again remanded for a new opinion. Specifically, the examiner was invited to comment on functional impairment resulting from repeated use over time, to include during flare-ups. Thereafter, in the same month, the Veteran's service-connected right ankle disability was re-evaluated. A current diagnosis of osteoarthritis of the right ankle was identified. During the clinical interview, the Veteran reported constant right ankle pain that increased with weight-bearing activities during the day. Flare-ups of severe pain occurred 2-3 times per week with physical activity and persisted for several days after onset. Functional loss was described as difficulty with prolonged standing, walking, and climbing stairs. Range of motion testing revealed dorsiflexion limited to 5 degrees and plantar flexion limited to 15 degrees. Abnormal range of motion contributed to functional loss in terms of impaired ambulation. Pain was observed with dorsiflexion and extension. Pain was observed with weight-bearing and it caused functional loss. Moderate localized tenderness was observed along the anterolateral and medial aspects of the right ankle. Objective evidence of crepitus was noted. No additional functional loss or loss of range of motion was observed with repetitive use testing, but the examiner noted that the Veteran reported that pain caused functional loss with repetitive use over time, but not a significant change in the range of motion. Pain and lack of endurance caused functional loss over time. The examiner indicated that the functional loss could not be explained in terms of range of motion. Instead, the Veteran reported increasing stiffness and pain with range of motion, no change in range of motion was reported. Conversely, during flare-ups, the Veteran's range of motion was estimated to be 0 degrees in both dorsiflexion and plantar flexion. Additional factors contributing to the Veteran's disability include less movement than normal and disturbance of locomotion. Muscle strength testing yielded normal findings. There was no evidence of muscle atrophy or ankylosis. Suspicion of right ankle instability was noted. However, anterior drawer and Talar tilt testing yielded normal findings. Previous surgical procedures included arthroscopic surgery in the 1980's. Related residuals were described as plates and screws. A right ankle scar was measured at 15 centimeters (cm) in length by 1 cm in width. Assistive devices included occasional use of a knee brace to manage pain and impaired ambulation. Diagnostic imaging confirmed arthritis in the right ankle only. The Veteran described a functional impact as difficulty performing activities involving weight bearing due to pain. Decreased range of motion affects ambulation and use of right lower extremity. Considering the Correia factors, objective evidence of pain was observed with non-weight bearing. Upon review of the record, the Board finds that the Veteran's service-connected right ankle disability meets the requirements for marked limitation of motion under both old and new regulations. In reaching the stated conclusion, the Board recognizes the Veteran's right ankle disabling has been evaluated on multiple occasions. Each time, the Veteran reported increasing pain, stiffness, decreased range of motion, and difficulty performing physical activities. VA examiners acknowledged a progression of symptoms with each examination; however, the examinations did not adequately address Correia, and Sharp, and subsequent opinions were necessary. In the October 2020 examination, the examiner estimated that the Veteran's range of motion of the ankle was reduced to 0 degrees during flare-ups, which the Veteran reported occurred 2-3 days per week and lasted for several days thereafter. Thus, the most recent, adequate VA examination reflects that the Veteran loses his range of motion during flare-ups, which occur a significant portion of the week. As a result, a rating of 20 percent, the schedular maximum, is warranted upon consideration of this additional impairment during flare-ups. The Board has also considered whether medical evidence supports the assignment of a separate evaluation under other applicable diagnostic codes. As the record to show ankylosis, astragalectomy, os calcis or astragalus involving the Veteran's right ankle; a separate rating is not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, or 5274. Similarly, the Board acknowledges the Veteran's reports of flareups described as severe pain with dorsiflexion and plantar flexion. While the disability picture for the Veteran's right ankle disability has been manifested by marked limitation of motion with pain, the Board notes that under 38 C.F.R. § 4.71a, Diagnostic Code 5270, a 20 percent evaluation is warranted for ankylosis of the ankle manifested by plantar flexion of less than 30 degrees. Ankylosis is a stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). In this case, the VA examiner suggested that the Veteran's range of motion was limited to 0 degrees of plantar flexion and dorsiflexion during flare-ups. However, the Veteran has consistently described flare-ups as "increasing right ankle pain that increases with weight bearing activities. With severe flare-ups, pain lingers from 1 day to a few days. These flare-ups occur 2-3 times per week." The Veteran has not specifically endorsed additional limitation in range of motion during these periods, which contradicts the findings of the VA examiner. Considering the above, the Board finds that the evidence fails to show that the Veteran's right ankle impairment is analogous to ankylosis at any time during the appeal period, to include during flare-ups. Thus, the rating factors enumerated in 38 C.F.R. §§ 4.40, 4.45 are not for application. See Chavis v. McDonough, 34 Vet. App. 1, 4 (U.S. 2021) (holding that evidence of functional equivalent of ankylosis during a flare-up requires consideration of rating factors in 38 C.F.R. §§ 4.40 and 4.45 but not if there is no such evidence, citing Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) and Spencer v. West, 13 Vet. App. 376, 382 (2000)). In addition, as noted above, the difference between disability evaluations before and after military service determines the degree of disability subject to service connection. While the Board notes that the Veteran's right ankle disability has been consistently manifested by symptoms associated with the diagnostic criteria for an evaluation 20 percent disabling, application of a pre-service deduction is required in accordance with 38 C.F.R. § 3.322. (Continued on the next page) Accordingly, an evaluation of 10 percent disabling, but no higher, is warranted for service-connected s/p right ankle injury with degenerative changes. The appeal is denied. Hannah Fisher Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.