Citation Nr: 21066227 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-06 338 DATE: October 29, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a service-connected right ankle disability is REMANDED. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from August 1975 to April 1976. The Veteran completed additional service in the Georgia National Guard. In April 2019, the Board addressed the claim for an increased rating for the service-connected right ankle disability. At that time, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional procedural development. Entitlement to a rating in excess of 20 percent for a service-connected right ankle disability is remanded. In September 2010, the Veteran submitted a VA 21-526b. Thereby, the Veteran initiated a claim for an increased rating for the service-connected right ankle disability. The Veteran is rated under Diagnostic Codes (DCs) 5003-5271 for his service-connected right ankle disability. The Board notes that hyphenated codes are used when a rating under one diagnostic code requires use of an additional code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Under DC 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. The rating criteria for limited motion of the ankle are listed in DC 5271. The previous version of Diagnostic Code 5271 authorizes 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. The Board notes that the previous diagnostic code does not provide for a rating in excess of 20 percent. Effective February 7, 2021, Diagnostic Code (DC) 5271 has been revised. Under the new DC, marked ROM (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) is rated as 20 percent disabling. Moderate ROM (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) is rated as 10 percent disabling. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed Reg. 76543, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271.). The Board notes that the current diagnostic code does not provide for a rating in excess of 20 percent. Between October 2011 and April 2014, more than 20 lay / buddy statements were associated with the claim file. The statements were supplied by multiple people, to include family, friends, and former military personnel. The Board has read and considered all of the lay statements. Without quoting, or citing the specific statements, the Board notes that the statements indicate that the Veteran's service-connected right ankle disability has impacted the Veteran's quality of life. In March 2016, the Veteran supplied sworn testimony to a decision review officer (DRO) in Georgia. The Veteran testified that the right ankle gave way and he fell on numerous occasions. The Veteran testified that his right ankle gave away at least a couple times each month. The Veteran testified that he could stand unassisted by a cane for 15 to 20 minutes; thereafter, he would need to sit because of the right ankle disability. The Veteran testified that a VA facility provided him a brace for his service-connected right ankle disability. In July 2016, the Veteran's treatment notes from the Valdosta Community-Based Outpatient Clinic (CBOC) were associated with the claims file. Therein, it was reported that the Veteran had tried multiple braces for his right ankle. During a May 2016 Kinesiotherapy Consult, a provider identified how the new VA-supplied brace would prevent rolling the right ankle. In October 2016, the Veteran's representative submitted a statement. Thereby, the Veteran contended that the symptoms associated with the service-connected right ankle disability demonstrated a greater degree of impairment than the currently assigned 20 percent evaluation. In August 2018, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). The Veteran testified that his right ankle "gives away," which has resulted in falls. The Veteran testified that he did not have as much range of motion (ROM) in the right ankle as he did the left. When questioned by the undersigned, the Veteran testified that his right ankle gave out between 4 and 7 times each month. In September 2020, a Podiatry Examination was conducted at the Lake City VAMC. At that time, the Veteran complained of right ankle pain and instability. The Veteran relayed that he had tried 3 different over-the-counter braces, but they were uncomfortable. In December 2020, the Veteran underwent a VA examination that addressed the severity of the service-connected right ankle disability. The examiner noted a diagnosis for post-traumatic right ankle arthritis. The Veteran reported flare-ups of pain with standing long periods of time. The examiner noted that there was functional loss with walking. The examiner noted mild pain during palpation of the lateral malleolus and during weight bearing. The examiner noted that pain limited functional ability with repeated use over a period of time and during a flare-up. In March 2021, the Board addressed the Veteran's claim for a rating in excess of 20 percent for the service-connected right ankle disability. At that time, the Board found that the December 2020 VA examination report was based on an inaccurate factual premise and, therefore, was not adequate for this increased rating analysis. The Board remanded the claim for an addendum opinion on the severity of the Veteran's service-connected right ankle disability. The Board directed the examiner to consider the Veteran's documented use of a brace for the service-connected right ankle disability during normal locomotion. In June 2021, the Veteran underwent a VA examination that addressed the severity of the service-connected right ankle disability. The examiner noted a diagnosis for right ankle post-traumatic arthritis. During the examination, the Veteran did not report right ankle flare-ups. However, the Veteran reported a decrease in movement for functional loss or impairment with repeated use over time. The Board notes that the examiner reported that there was not a history of right ankle instability. The examiner noted that repetitive testing was not performed due to right ankle pain. The examiner listed the following additional factors contributing to the Veteran's service-connected right ankle disability: interference with standing, swelling, disturbance of locomotion, and less movement than normal. The Veteran did not demonstrate right ankle ankylosis. The Veteran did not demonstrate asymmetric or excessive motion during right ankle stability testing. Importantly, the examiner relayed that the Veteran did not use assistive devices for normal locomotion, to include braces. The examiner relayed that a May 2016 x-ray revealed degenerative joint disease of the right ankle medial and lateral compartments. The examiner relayed that there was a worsening of the Veteran's symptoms, but no change to the service-connected diagnosis. The examiner relayed that, "Veteran reports use of Aleve for the ankle pain, but no brace was indicated or worn on exam." Upon deliberate review, the Board notes that the appellate record has numerous indications that the Veteran utilized a right ankle brace for normal locomotion. However, even though directed, the June 2021 examiner did not address the Veteran's documented utilization of a right ankle brace for normal locomotion. Consequently, the Board finds that the June 2011 VA examination report is not fully adequate for this increased rating analysis. The Board also notes that the Veteran is currently assigned the maximum 20 percent schedular rating under the previous and current versions of DC 5271. At various times during the claim period, the Veteran and his representative have relayed that the Veteran's right ankle symptoms are more severe than assessed by the rating system(s). Consequently, the Board finds that a claim for an extraschedular rating has been raised by the record. As this increased rating claim for the service connected right ankle disability must be remanded for an adequate VA examination report, the AOJ should secure an opinion from the Director of Compensation Services about an extraschedular rating for the Veteran's service-connected right ankle disability. Consequently, the matter is REMANDED to the agency of original jurisdiction (AOJ) for the following action(s): 1. Schedule a VA ankle examination, with a different and appropriate examiner, to ascertain the severity of the Veteran's service-connected right ankle during the claim period. The VBMS and Virtual VA electronic claims files must be made available to, and must be reviewed by, the examiner. All indicated testing should be accomplished and all symptomatology associated with right ankle disability should be identified. The VA examiner must consider and address the Veteran's documented use of a brace for the service-connected right ankle disability during normal locomotion. 2. The AOJ must ensure that the examination report requested above is in compliance with the directives of this remand. If the report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 3. After completion of the first two directives, the Veteran's increased rating claim for the service-connected right ankle disability should be forwarded to the Director of Compensation and Pension Service for extraschedular consideration. 4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for an increased rating for the service-connected right ankle disability. If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond before the claim is returned to the Board for additional appellate consideration. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.