Citation Nr: 21066077 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-63 991 DATE: October 28, 2021 ORDER An initial rating of 20 percent, but no higher, for recurrent right ankle sprain with arthritis is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a separate rating for neurological impairment associated with recurrent right ankle sprain with arthritis is remanded. FINDING OF FACT For the entire appeal period, the Veteran's recurrent right ankle sprain with arthritis results in marked limited motion, without ankylosis. CONCLUSION OF LAW The criteria for an initial rating of 20 percent, but no higher, for recurrent right ankle sprain with arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2000 to July 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2015 by a Department of Veterans Affairs (VA) Regional Office. In January 2020, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. In November 2020, the Board, in pertinent part, remanded the issue on appeal for additional development. In a rating decision issued in December 2020, the Agency of Original Jurisdiction granted an increased rating of 20 percent for the Veteran's right ankle disability as of December 1, 2020. Inasmuch as a higher rating is available for such disability, and the Veteran is presumed to be seeking the maximum available benefit for a disability, his claim for an increased rating remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). As the Veterans Law Judge who held the January 2020 hearing is no longer employed at the Board and can no longer participate in the appeal, VA offered the Veteran an additional hearing with a different Veterans Law Judge by way of an August 2021 letter. The Veteran did not respond to that letter and, as such, the Board will assume that he does not want another hearing and proceed accordingly. 1. Entitlement to an initial rating in excess of 10 percent prior to December 1, 2020, and in excess of 20 percent thereafter for recurrent right ankle sprain with arthritis. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is 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. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the U.S. Court of Appeals for Veterans Claims held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he 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." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran's recurrent right ankle sprain with arthritis is evaluated as 10 percent disabling prior to December 1, 2020, and 20 percent disabling thereafter under Diagnostic Code 5010-5271. In this regard, 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. 38 C.F.R. § 4.27. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Id. In the instant case, the Diagnostic Code for the Veteran's right ankle disability reflects that his service-connected traumatic arthritis is rated based on limitation of ankle motion. 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. In this regard, prior to the regulatory change, Diagnostic Code 5010 pertains to traumatic arthritis and is evaluated as degenerative arthritis. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71A. Diagnostic Code 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. In the absence of limitation of motion, Diagnostic Code 5003 provides for a 10 percent rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under Diagnostic Code 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45. As of February 7, 2021, under the amended criteria, Diagnostic Code 5010 still pertains to post-traumatic arthritis, but such is now rated as limitation of motion, dislocation, or other specified instability under the affected joint rather than degenerative arthritis. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Thus, in practice, both versions of Diagnostic Code 5010 ultimately provide that arthritis of an affected joint will be rated based on limitation of motion. Prior to February 7, 2021, Diagnostic Code 5271 provides a 10 percent rating for moderate limited motion of the ankle and a 20 percent rating for marked limited motion of the ankle. 38 C.F.R. § 4.71A. As of February 7, 2021, Diagnostic Code 5271 provides for a 10 percent rating for moderate limited motion, defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and a 20 percent rating for marked limited motion of the ankle, defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Notably, the amendment to Diagnostic Code 5271 was intended as a clarification of current policy and not a substantive change to the rating criteria. The normal range of motion in the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. Plate II. VA treatment records dated in April 2013 show the Veteran's denial of any right ankle symptoms and indicate that he had normal strength and sensation, with only a little tenderness and no swelling. Private treatment records dated in May 2013 show the Veteran had a history of multiple sprains to the right ankle, was status-post reconstructive surgery, and experienced symptoms of pain, numbness, and tingling. Additionally, a June 2013 VA treatment record reflects his reports of moderate pain and needing to wear a right ankle brace, and an August 2013 VA treatment record shows his complaints of persistent, intermittent right lateral ankle pain despite normal strength. A November 2013 VA treatment record reflects the Veteran's report of occasional right ankle pain, and an April 2014 VA treatment record indicates his pain was continuous, aching, burning, throbbing, and not well-controlled. A September 2014 VA treatment record also shows his complaints of constant right ankle pain and a referral for an ankle brace, and a December 2014 VA treatment records indicate the Veteran experienced right ankle pain and effusion that limited his range of motion. An August 2015 VA examination report indicates the Veteran had a history of multiple sprained right ankles in 2003, 2004, 2007, 2013, and 2014 and underwent right ankle ligament reconstruction in June 2007 and right ankle cadaveric tendon placement surgery in January 2015. During the examination, the Veteran denied flare-ups, but reported that weight-bearing activities and range of motion caused right ankle pain, and his decreased range of motion affected his ambulation and the use of his right lower extremity. Initial range of motion testing demonstrated dorsiflexion limited to 10 degrees and plantar flexion limited to 30 degrees, with evidence of pain on weight-bearing, pain in dorsiflexion and plantar flexion, and tenderness on palpation. There was no additional loss of function or range of motion after three repetitions; however, the VA examiner found there was insufficient evidence or objective examination findings to provide a reliable prediction of decreased functional ability with repeated use over a period of time. Additionally, the VA examiner found the Veteran's right ankle symptoms resulted in less movement than normal, swelling, disturbance of locomotion, and interference with standing. Strength in plantar flexion was reduced, whereas there was no muscle strength reduction in dorsiflexion and no muscle atrophy. The Veteran did not have ankylosis of the right ankle, and while instability was suspected, both anterior drawer testing and talar tilt testing were negative. At the January 2020 Board hearing, the Veteran reported symptoms of pain, numbness, decreased range of motion, and slight instability that had continued following his second right ankle surgery in 2015. The Veteran claimed he was unable to wear a brace at work due to the footwear required by his job as a firefighter, which further aggravated his disability. At a December 2020 VA examination, the Veteran reported flare-ups that occurred with increased activity and lasted less than one day and described functional loss in that activities involving weight-bearing. He also indicated that ankle range of motion caused pain and his decreased range of motion affected ambulation and the use of his right lower extremity. Physical examination revealed dorsiflexion limited to 5 degrees and plantar flexion limited to 15 degrees. Pain was noted on examination during dorsiflexion and plantar flexion and with weight-bearing. Repetitive-use testing did not produce any additional loss of function or range of motion; however, the VA examiner found pain, fatigue, weakness, and lack of endurance would further limit plantar flexion to 10 degrees with repeated use over time and during flare-ups. Based on the foregoing, the Board resolves all doubt in the Veteran's favor and finds that his right ankle disability has more nearly approximated marked limited motion for the entire appeal period. In particular, although the examination findings in August 2015 revealed dorsiflexion limited to only 10 degrees and plantar flexion limited to 30 degrees, the VA examiner was unable to provide an opinion for range of motion following repeated use over time. In this regard, the December 2020 VA examiner specifically found that pain, fatigue, weakness, and lack of endurance would further limit the Veteran's range of motion by five degrees with plantar flexion. Applying a five degree reduction to the range of motion findings in August 2015, such would result in dorsiflexion limited to 5 degrees and plantar flexion limited to 25 degrees. Additionally, the Board finds the symptomatology and resulting functional impairment described by both VA examiners are congruent in severity, duration, and frequency and consistent with the remaining medical evidence and lay testimony of record. Thus, a 20 percent rating, the schedular maximum, under Diagnostic Code 5271 is warranted for the entire appeal period. 38 C.F.R. § 4.71A. In this case, the only applicable Diagnostic Code that provides for a rating in excess of 20 percent is Diagnostic Code 5270, which pertains to ankylosis of the ankle. Here, however, the evidence does not demonstrate any findings of ankylosis or the functional equivalent thereof at any time during the appeal period. Rather, as described above, the pertinent medical evidence shows the Veteran has had the ability to move his right ankle throughout the appeal period. As a result, a higher rating under Diagnostic Code 5270 is not warranted for the Veteran's service-connected right ankle disability. Additionally, as there is no evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy, separate ratings under Diagnostic Codes 5272, 5273, or 5274 are not warranted. In reaching its conclusions in the instant case, the Board has acknowledged the Veteran's belief that his right ankle disability is more severe than as reflected by the previously assigned disability ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be persuasive. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected right ankle disability; however, as described above, the Board finds that his symptomatology has been stable throughout the period on appeal. Thus, assigning staged ratings for such disability is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching such determinations, the Board has considered the applicability of the benefit of the doubt doctrine, which has resulted in the partial award of a 20 percent rating for the Veteran's right ankle disability throughout the appeal period. However, insofar as the Board has denied higher or separate ratings for such disability, the preponderance of the evidence is against such aspects of the Veteran's claim. Thus, the benefit of the doubt doctrine is not applicable in such regard and his increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to a separate rating for neurological impairment associated with recurrent right ankle sprain with arthritis. As indicated previously, the Veteran has reported neurological symptoms associated with his right ankle disability, to include numbness, tingling, and burning. Additionally, a December 2020 VA peripheral nerve conditions examination reflects a diagnosis of neuropathy, characterized as moderate incomplete paralysis of the right musculocutaneous and internal popliteal nerves. Furthermore, the VA examiner identified an onset of 2015 for such condition in connection with right ankle surgery. In this regard, the August 2015 VA examiner described such as right ankle cadaveric tendon placement surgery and was performed in January 2015. Consequently, as the evidence suggests that the Veteran has neurological impairment associated with the Veteran's right ankle disability, the Board finds that a remand is necessary in order to obtain an opinion clarifying the presence of such impairment, the nerve(s) affected, the severity of the condition, and the date of onset. The matter is REMANDED for the following action: Forward the record, to include a copy of this remand, to the December 2020 VA examiner who conducted the peripheral nerve conditions examination, or an appropriate substitute if unavailable, for an addendum opinion addressing the possible presence of neurological impairment associated with the Veteran's right ankle disability. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected recurrent right ankle sprain with arthritis is manifested by neurological impairment, to include as a result of any associated surgery. If so, the examiner should identify the nerve(s) affected, the severity of the condition, and the date of onset. In offering such opinion, the examiner should consider the Veteran's reports of numbness, tingling, and burning; the December 2020 VA peripheral nerve conditions examination reflecting a diagnosis of neuropathy, characterized as moderate incomplete paralysis of the right musculocutaneous and internal popliteal nerves, with an onset in 2015 in connection with right ankle surgery; and the August 2015 notation of right ankle cadaveric tendon placement surgery in January 2015. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.