Citation Nr: 21066122 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 13-35 723 DATE: October 28, 2021 ORDER Entitlement to a rating in excess of 10 percent for left ankle tendonitis is denied. FINDING OF FACT The Veteran's left ankle tendonitis is manifested by no more than what amounts to moderate limitation of motion of this ankle even when accounting for his pain. CONCLUSION OF LAW The criteria are not met for entitlement to a rating higher than 10 percent for the left ankle tendonitis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5024-5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1994 to October 2001. This appeal to the Board of Veterans' Appeals (Board) is from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim during a hearing in November 2014 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In November 2018, the Board remanded this claim back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration. The Board later denied this claim in September 2020 and, in response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In June 2021, the parties filed a Joint Motion for Partial Remand (JMPR), which the Court granted in an Order that same month, partially vacating the Board's decision more specifically, to the extent it had denied this claim, and remanding this claim back to the Board for re-adjudication in compliance with directives specified. Entitlement to a rating higher than 10 percent for left ankle tendonitis The Veteran contends that his left ankle tendonitis is more severe than is contemplated by his existing 10 percent rating for this disability. The Veteran's left ankle tendonitis is rated under DC 5024-5271. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the hyphenated DC represents tenosynovitis (DC 5024) and limited motion of the ankle (DC 5271). DC 5024 for tenosynovitis directs that the disability will be rated based on limitation of motion of the part affected. 38 C.F.R. § 4.71a, DC 5024. And since, here, it is the ankle, DC 5271 is implicated. According to DC 5271, a 10 percent rating is warranted for "moderate" limitation of motion of the ankle, and a 20 percent rating is warranted for "marked" limitation motion of the ankle. Id., DC 5271. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. Whereas "marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. Effective February 7, 2021, VA amended the rating criteria for DC 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderately limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for markedly limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Under the rating criteria in effect prior to February 7, 2021, the Board finds that the preponderance of the evidence is against a rating greater than 10 percent for the left ankle tendonitis. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, instability, weakened movement, and excess fatigability. However, even considering his lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that his flare-ups occur with walking, prolonged standing, running, and weight-bearing do not result in symptoms and consequent impairment more nearly approximating limitation so distinctive or emphasized that it would approximate marked limitation of motion. The Veteran filed this claim for an increase in rating on March 29, 2012, meaning the period under review dates back to one year prior so, since March 29, 2011. As the Court explained in Harper v. Brown, 10 Vet. App. 125 (1997), citing 38 C.F.R. § 3.400(o)(2), the effective date in a claim for an increased rating may be up to one year prior to the date of receipt of the increased rating claim provided the evidence reflects a worsening of the disability during that immediately preceding year; in other words, this must be factually ascertainable. See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year "grace period" for filing a claim following an increase in severity of a service-connected disability). Thus, to this end, the Board has considered the evidence from one year prior to the date on which the Veteran filed this claim to determine whether it reflects a worsening during that period. That being said, in the June 2021 JMPR, the Court cited the report of an even earlier November 2006 VA examination during which the Veteran stated that he had discomfort in this ankle and heel while walking, as well as feelings of instability. Regarding the latter, the Court has clarified that objective medical evidence is not categorically more probative than lay evidence of instability. See English v. Wilkie, 30 Vet. App. 347 (2018). The Veteran further noted that his ankle pain flared about twice per week, lasting for an hour each time. But, on objective physical examination, he had full range of dorsiflexion, so to 20 degrees, and plantar flexion to 40 degrees, so to just slightly less than the normal 45 degrees. See 38 C.F.R. § 4.71a, Plate II. The examiner explained the Veteran's left ankle function was additionally limited by pain, weakness, lack of endurance, and after repetitive use, however, none of these symptoms even in this worst-case scenario, caused any additional loss in range of motion. In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis (and, by extension, Burton when the disability like here does not involve arthritis), it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). After filing his claim for a higher rating for his left ankle tendonitis, the Veteran was provided another VA examination in June 2012 reassessing the severity of this service-connected disability. He said his disability limited his physical activity and caused pain. On objective physical examination, tenderness in the lateral aspect of this ankle was observed but no instability or ankylosis. The Veteran also demonstrated full range of motion of this left ankle in both plantar flexion and dorsiflexion, moreover, without objective evidence of pain on active motion and without further limitation of motion following three repetitions of movement. He said his left ankle functionally impacted his ability to work because it limits his ability to walk and stand for prolonged periods. There are occasions when him saying that would be tantamount to raising a derivative claim of entitlement to a total disability rating based on individual unemployability (TDIU). See, e.g., Rice v. Shinseki, 22 Vet. App. 447 (2009). Consider also, however, that the Veteran does not presently have sufficient ratings for his service-connected disabilities to warrant consideration of his entitlement to a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). And it is not shown that he is unemployable because of this service-connected left ankle disability, and his others, to warrant referring this claim for consideration of entitlement to a TDIU alternatively on an extra-schedular basis under the special provisions of § 4.16(b). Generally, the degrees of disabilities specified in the Rating Schedule 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. See 38 C.F.R. §§ 4.1, 4.15. In other words, the disability rating, itself, is acknowledgment the disability "impacts" his employment so is not the same as saying it necessarily renders him unemployable, meaning incapable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During his November 2014 hearing before this Board, the Veteran testified that, while he does not use a left ankle brace, he typically wears boots in attempting to help stabilize this ankle. Further, he reported sleeping with his ankle propped up. During his September 2019 VA examination that he since has had, again reassessing the severity of his left ankle disability, the Veteran reported worsening pain with walking, prolonged standing, weight-bearing, and running. He did not have a history of left ankle surgery or joint replacement. Range-of-motion testing showed dorsiflexion was limited to 10 degrees and plantar flexion limited to 20 degrees, but with the same range of motion measurements after repeated use, and the Veteran estimated no further limitation of motion after repeated use over time or during flare ups. The was moderate, localized tenderness of the lateral and medial portion of the ankle and evidence of crepitus, but full muscle strength and no ankylosis. The examiner observed instability of station, disturbance of locomotion, and interference with sitting and standing due to this ankle, but the Veteran denied using an assistive device for normal mode of locomotion for this ankle. Based on the results of those several evaluations, the Veteran's lay statements, and his hearing testimony, the Board finds that the preponderance of the evidence does not support the award of a disability rating greater than 10 percent for the left ankle tendonitis under the rating criteria in effect prior to February 7, 2021. To reiterate, "moderate" limitation of motion of the ankle qualifies for a 10 percent disability rating, and a 20 percent disability rating contemplates "marked" limitation of motion of the ankle. See 38 C.F.R. § 4.71a, DC 5271. The Veteran's left ankle limited motion is found to be best characterized as moderate rather than marked. At its worst, during the September 2019 VA examination, his dorsiflexion was limited to 10 degrees (out of a normal 20 degrees), and his plantar flexion was limited to 20 degrees (out of a normal 45 degrees). Even accounting for his reported functional loss of difficulty with prolonged standing, walking, running, and sitting, and instability, the objective medical evidence of record does not support that there is any further limitation of motion due to these factors that would justify a higher 20 percent rating. In sum, these factors do not change the moderate limitation of motion of his left ankle to marked. As the record does not show evidence of marked impairment, the Board finds that the preponderance of the evidence weighs against an award of a higher 20 percent rating for the left ankle under the rating criteria in effect prior to February 7, 2021. Under the new rating criteria effective February 7, 2021, the Board also finds that the preponderance of the evidence is against a rating greater than 10 percent for the left ankle tendonitis. Notably, there was no additional loss in range of motion after prolonged or repetitive use over time, or during flare-ups, according to the report of the September 2019 VA examination when the Veteran's range of motion was the worst that it has been measured. The Board again acknowledges his lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, perceived instability, and lack of endurance. But, to reiterate, even considering his lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that his pain flares with walking, prolonged standing, weight-bearing, and running does not result in symptoms and consequent impairment more nearly approximating marked limitation of motion of the ankle (meaning less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion). At worst, his dorsiflexion is still to 10 degrees and his plantar flexion still to 20 degrees (i.e., still to twice as much as is required for a higher 20 percent rating according to the criteria in effect since February 7, 2021). The Board has considered whether any other DCs 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 DC. See 38 C.F.R. § 4.71a. More specifically, there is no evidence of ankylosis of the ankle or subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. As such, a rating under the DCs pertaining to those ankle disabilities is not warranted. See 38 C.F.R. § 4.71a, DCs 5270, 5272-5274. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating higher than 10 percent for his left ankle tendonitis. In denying any greater rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.