Citation Nr: 21066034
Decision Date: 10/28/21	Archive Date: 10/28/21

DOCKET NO. 16-00 949
DATE: October 28, 2021

ORDER

Entitlement to an increased evaluation in excess of 10 percent for status post fracture of the lateral malleolus, left ankle is denied.

FINDING OF FACT

The Veteran, without good cause, failed to report to a VA examination related to his claim for an increased rating for status post fracture of the lateral malleolus, left ankle; based on the other evidence of record his status post fracture of the lateral malleolus, left ankle has not resulted in reduction of range of motion to less than 15degrees dorsiflexion or less than 40degrees plantar flexion, representing moderate limitation of motion of the ankle.

CONCLUSION OF LAW

The criteria for an increased evaluation in excess of 10 percent for status post fracture of the lateral malleolus, left ankle have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service from May 1977 to October 1993with intermittent periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).

This matter comes before the Board of Veterans' Appeals (Board), on appeal from a February 2013rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2020, the Board, in pertinent part, denied an increase in the rating for the Veteran's left ankle disability. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In June 2021, the Court issued an order that vacated part of the Board's decision as to entitlement to a rating in excess of 10 percent for the left ankle disability, and remanded the Veteran's claim in compliance with the Joint Motion for Partial for Remand (JMPR).

Entitlement to an increased evaluation in excess of 10 percent for status post fracture of the lateral malleolus, left ankle

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 civil occupations. See 38 U.S.C. § 1115; 38C.F.R. §§ 3.321(a), 4.1, 4.21. Disability evaluations are based upon the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10.

Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath, 1 Vet. App. at 593. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. See 38 C.F.R. §§ 3.321(a), 4.1, 4.21. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.7, 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability. See 38 C.F.R. § 4.1, 4.2; Schafrath,1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran's disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

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. See 38 C.F.R. § 4.40. It is essential that the examination upon which disability ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. See id. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. See id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See id. 

The factors involved in evaluating and rating disabilities of the joints include the following: less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination and impaired ability to execute skilled movements smoothly; or pain on movement, swelling, deformity, or atrophy of disuse. See38 C.F.R. § 4.45. An evaluation based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011).

Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor that actually limited motion, such as deformity, atrophy, adhesions, or any of the other factors cited above. See Schafrath, 1 Vet. App. at 592. Consequently, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See id. 

Where the Veteran is diagnosed with any form of arthritis, painful motion is an important factor of disability, and facial expressions such as wincing exhibited in the presence of pressure on or manipulation of the affected joints, should be carefully noted and related to the affected joints. See 38 C.F.R. § 4.59. Actually painful, unstable, or malaligned joints due to healed injury are at the very least entitled to the minimum compensable rating for the affected joint. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. See id. Crepitation within the joint structures or the soft tissues, such as the tendons or ligaments, should be noted carefully as points of contact which are diseased, and flexion elicits such manifestations. See id. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See id. 

When adjudicating disabilities evaluated based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment must be applied, and examinations must assess whether the disability at issue manifested weakened movement, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Such inquiry was not to be limited to muscles or nerves, and, if feasible, these determinations were to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. See id. Joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; see also Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016).

Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis; thus, a rating based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). However, 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. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Although pain may cause functional loss, pain itself does not constitute functional loss and is merely one factor to be considered when evaluating functional impairment. See id. However, 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997).

Once the evidence has been assembled in the record, it is the Board's responsibility to evaluate and consider all lay and medical evidence of record, to analyze the credibility and probative value of the evidence, and to provide reasons for rejecting any material evidence favorable to the claimant. See 38 U.S.C. § 7104(a); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and credibility, a factual determination regarding the probative value of the evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where the evidence is in relative equipoise, the claimant shall prevail; the preponderance of the evidence must weigh against the Veteran's claim in order for it to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990); Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996).

The Veteran is service connected for status post fracture of the lateral malleolus, left ankle at 10 percent under 38 C.F.R. § 4.71 Diagnostic Code 5271. Per the June 2021 JMPR, it was agreed that the Board erred when it failed to provide adequate reasons and bases to fully account for the Veteran's functional loss and did not properly apply the requirements of §§ 4.40 and 4.45.

The Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected status post fracture of the lateral malleolus, left ankle.

The Veteran filed his claim for increase rating in September 2012 and therefore the period on appeal for the claim for increase is from September 2011. See 38 C.F.R. § 3.400 (o)(2).

The Board notes that effective February 7, 2021, during the pendency of this appeal, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disabilities. 85 Fed. Reg. 76453 (Nov. 30, 2020). 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 has considered 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, with the criteria that is more favorable to the Veteran applied.

Under DC 5271, a 10 percent rating is warranted for moderate limitation of ankle motion. A maximum 20 percent rating is warranted for marked limitation of ankle motion. 38 C.F.R. § 4.71a, DC 5271.

Marked and moderate are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

Normal or full range of motion for the ankle is dorsiflexion (extension) from zero to 20 degrees and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II.

Under the revised version of DC 5271 effective February 7, 2021, a 10 percent rating is warranted for moderate limitation of motion, defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A maximum 20 percent rating is warranted for marked limitation of motion, defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. 85 Fed. Reg. 76453, 76484 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271).

When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA. When the claim is original or supplemental, or a claim for increase, and the claimant fails to report for an examination scheduled without good cause in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655. Pertinent to these claims, 38 C.F.R. § 3.655(b) applies to original service connection and non-initial increase rating claims. As to an original service connection claim, when a claimant fails to report for a VA examination without good cause, the claim shall be rated based on the evidence of record; and for a non-initial increased rating claim failure to show to the examination without good cause will result in a denial. See 38 C.F.R. § 3.655(b).

The Board notes that in February 2017 and July 2018, the Veteran's representative requested the Veteran be afforded new examinations given the length of time since the most recent examination. Pursuant to a September 2018 Board remand, the Veteran was scheduled for an examination in connection with his increased rating claim. In December 2019, the Veteran was scheduled for a VA examination to determine the current nature and severity of his service-connected status post fracture of the lateral malleolus, left ankle. However, the record shows that the Veteran refused to attend the scheduled VA examination. The record shows that the examination was cancelled at the Veteran's request. See January 2020 exam request. The Veteran refused to attend the scheduled VA examination at the selected facility because allegedly they "almost killed him last time." The record shows VA's attempts to reschedule the examination. See December 2019 report of general information. Neither the Veteran nor his representative provided a reason for good cause not to show up at the VA examination. The Veteran was notified of his failure to attend the VA examination in an April 2020 supplemental statement of the case (SSOC).

In a November 2012 VA examination, the Veteran reported having pain since the previous VA examination in January 2002. He reported pain level 6 on a scale of 1 to 10, more pain in cold weather and winter months with activities like prolong standing and walking. He doesn't take pain medication and hasn't had any recent injuries, local steroids injections or surgeries (since 2002). The examiner noted that the Veteran did not report flare-ups; however, he reported more pain during cold weather. The Veteran's left ankle range of motion was 40 degrees plantar flexion and 15 degrees plantar dorsiflexion. No pain was noted on exam. The Veteran was able to perform repetitive use testing with range of motion after repetitive use testing being the same. The examiner noted that the Veteran has additional limitation in range of motion and indicated that the Veteran has functional loss as less movement than normal. The examiner also noted localized tenderness or pain on palpation on the left ankle. Muscle strength was normal and there was no instability or ankylosis. The examiner noted the occasional use of a cane. Additionally, the examiner noted that the Veteran have functional impact due to the condition described as "can do light duty jobs." While the VA examiner noted the Veteran had total ankle joint replacement in the 1980s with pain residuals, following clarification in December 2012, the examiner clarified that the Veteran stated he did not have an ankle replacement.

According to the December 2012 VA Back Examination report, the Veteran demonstrated normal left ankle plantar flexion and dorsiflexion strength but decreased lower leg and ankle sensation.

In a March 2013 statement, the Veteran stated that he has displacements in the left ankle that makes it "lock and crack all the time" and that he uses a cane to balance due to instability. Additional VA treatment records from the period on appeal show the Veteran continuously reported ankle pain. Of note, in June 2014, he reported he was unable to bear weight and in October 2014, he reported foot cramps on and off for extended periods of time and that he would get spasms which would limit his ability to function. At that time, the VA examiner indicated that the Veteran's pain did not contribute to functional loss as the Veteran was able to walk on his heels and toes without much difficulty. There was no functional loss for the left lower extremity attributable to his claimed foot condition at that time. Similarly, there was no functional loss and no pain, weakness, fatigability, or incoordination that significantly limited the functional ability during flare-up or when the foot is used repeatedly over time. The Veteran also denied using any assistive devices as a normal mode of locomotion at that time. The examiner observed that the Veteran was noted to have a toe fracture and had dropped a 100 pound rock on hs left great toe over two weeks prior. 

Based on the range-of-motion findings, in comparison to the normal range of motion of the ankle indicated in 38 C.F.R. § 4.71, Plate II, the Board concludes that the Veteran's limitation in dorsiflexion and plantar flexion represents no worse than moderate limited motion. The Veteran had range of motion that was within 5 degrees of full range of motion on both plantar flexion and dorsiflexion, with no reduction in range of motion after repetitive use. As the Veteran was able to perform nearly full range of motion on both plantar flexion and dorsiflexion, a rating in excess of 10 percent is not warranted under Diagnostic Code 5271.

The Board concludes that the evidence of record more closely approximates slight to, at most, moderate, rather than marked, limitation of motion. This is true even when considering any additional functional loss. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although the 2012 VA examiner also stated there was additional limitation in range of motion of the ankle following repetitive use testing and functional impairment with the contributing factor being less movement than normal, the record shows that after repeated use testing of the left ankle, the range of motion remained dorsiflexion limited to 15 degrees and plantar flexion limited to 40 degrees. Thus, no additional loss beyond that noted in the initial range of motion testing was shown. Further, the Veteran consistently denied having flare-ups. 

The evidence of record demonstrates the Veteran has continued to retain motion in his left ankle. Additionally, the October 2014 VA examiner indicated that the Veteran's foot pain did not contribute to functional loss as the Veteran was able to walk on his heels and toes without much difficulty and there was no functional loss and no pain, weakness, fatigability, or incoordination that significantly limited the functional ability during flare-up or when the foot is used repeatedly over time. While pain alone does not constitute functional loss, the Court has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body. See 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 32. In this case, the Veteran has continuously complained of ankle pain. Nevertheless, even considering the effects of pain, there is nothing in the record that suggests the pain resulted in a functional loss akin to marked limitation of motion of the ankle. To the extent that the Veteran has complained of weight-bearing and was noted to be only able to do light duty jobs, there is no indication that his range of motion has been limited to more than a moderate degree. Additional VA treatment records dated in April and July 2014 show there was no joint deformity, no gross sensory motor deficits, and strength was 5 out of 5, and that the Veteran was able to stand unaided on single leg and walk on heels and toes regarding musculoskeletal and neurological evaluation. The Veteran has endorsed symptoms of pain, cramping, instability, and difficulty bearing weight. However, the clinical findings of record do not show that the joint function of the Veteran's left ankle is additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-44 (2011).

In other words, any additional functional impairment and loss due to pain does not more nearly approximate a finding of marked limitation of motion. 38C.F.R. §4.45, 4.71a, Diagnostic Codes 5271; DeLuca, 8 Vet. App. at 202. Accordingly, the Board is unable to grant an increased schedular evaluation based upon pain. Further, in regard to the Veteran's assertions of instability of his left ankle, the 2012 VA examiner performed joint stability testing and both the Anterior Drawer and Talar Tilt Test produced negative results.

Taken as a whole, the findings more closely approximate moderate limitation of motion without additional compensable functional loss, and the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the service-connected left ankle disability under the version of DC 5271 in effect prior to February 7, 2021. The Board has also considered whether the Veteran is entitled to a higher rating for his left ankle disability under the revised rating criteria for DC 5271, however, as noted above, the evidence of record does not reflect dorsiflexion less than 5 degrees or plantar flexion less than 10 degrees.

The Board acknowledges that with regard to whether a higher rating is warranted under other available diagnostic codes, both the old and the revised versions, the Board notes that the record shows no ankylosis, malunion of the ankle, impairment of the tibia or fibula, or astragalectomy. 38 C.F.R. § 4.71a, DCs 5262, 5270, 5272, 5273, 5274. Thus, the other diagnostic codes are not applicable.

In conclusion, the preponderance of the evidence is against a rating in excess of 10 percent for the service-connected status post fracture of the lateral malleolus, left ankle at any time during the appeal period. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).

 

 

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Williams, 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.