Citation Nr: 21066848 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-58 034 DATE: November 2, 2021 ORDER Entitlement to a 20 percent rating, but not higher, for right ankle degenerative joint disease, as of January 30, 2014, is granted, subject to the law and regulations governing the payment of monetary benefits. FINGING OF FACT As of January 30, 2014, the Veteran's service-connected right ankle disability more closely approximated marked limitation of motion, and was not manifested by ankylosis, subastragalar, or tarsal joint, an astragalectomy, or malunion of the os calcis or astragalus. CONCLUSION OF LAW The criteria for a 20 percent disability rating, but not higher, for right ankle degenerative joint disease, as of January 30, 2014, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Code (DC) 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to July 1972, and from August 1977 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in August 2019 and June 2021 for additional development. It is now before the Board for further appellate review. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). Entitlement to a rating in excess of 10 percent for right ankle degenerative joint disease The Veteran has asserted that he is entitled to a rating higher than 10 percent for his service-connected right ankle disability. The September 2014 rating decision on appeal granted an evaluation of 10 percent for moderate limited motion of the right ankle, effective January 30, 2014. The Veteran filed a Notice of Disagreement in August 2015. The Veteran has affirmed that his ankle disability is more severe than the 10 percent evaluation assigned. The Veteran's right ankle disability is rated under 38 C.F.R. § § 4.71a, Diagnostic Code 5271, pertaining to limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § § 4.71a, Diagnostic Code 5271. Words such as "moderate" and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. However, the Rating Schedule provides some guidance by defining full range of motion of the ankle as from zero to 20 degrees of dorsiflexion and from zero to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. The Veteran was afforded a VA examination in August 2014. The examiner diagnosed the Veteran with right ankle degenerative arthritis. During the examination, the Veteran reported that he was experiencing constant pain with intermittent worsening, and that his ankle would buckle at times, and that his doctors have told him that he has bone chips in his ankle, which contributes to his ankle buckling. The Veteran also reported experiencing flare-ups, which make it harder for him to walk or stand. Initial range of motion testing indicated abnormal right ankle dorsiflexion of zero to 15 degrees and plantar flexion of zero to 30 degrees, with pain on motion. There was no additional loss to range of motion after observed repetitive use testing. The examiner opined that it was not possible to reproduce a flare-up during examination. The examiner noted that the right ankle disability also caused functional impairment resulting in less movement than normal and pain on movement. There was noted pain on palpation. There was normal muscle strength and no muscle atrophy on testing. There was no noted instability or ankylosis. The Veteran had a noted shin splint (medial tibial stress syndrome) resulting in intermittent tightness and sharp pain in the anterior of the leg. The Veteran also had achilles tendonitis which resulted in constant dull ache. There were no surgeries noted. The Veteran occasionally uses a brace as an assistive device. The examiner concluded by explaining that the Veteran's disability resulted in a functional impact, causing the Veteran to be unable to walk or stand for long periods of time. The Veteran was afforded another VA examination in June 2019. The examiner diagnosed the Veteran with right ankle degenerative joint disease. During the examination, the Veteran reported that, within the prior 18 months from this examination, his pain, popping, stiffness, soreness, and ankle giving out has increased. The Veteran also reported that he had difficulty walking and standing for prolonged periods of time. No flare-ups were reported. The Veteran noted complaints of functional loss, due to difficulty walking and standing for prolonged periods. Initial range of motion testing indicated normal right ankle dorsiflexion of zero to 20 degrees and plantar flexion of zero to 45 degrees, with pain on motion. There was noted pain with weight bearing. There was no additional loss to range of motion after observed repetitive use testing. However, there was additional limitation to range of motion, due to pain, after repeated use over time. After repeated use over time, the Veteran's right ankle dorsiflexion is limited from zero to 15 degrees and plantar flexion is limited from zero to 40 degrees. The examiner noted that additional factors that contributed to the disability included disturbance of locomotion and interference with standing. There was normal muscle strength, no muscle atrophy, and no ankylosis was noted. There was suspected right ankle instability, but there were negative results for anterior drawer and talar tilt testing. There were no surgeries noted. There was a noted history of avulsion fracture to distal fibula. The Veteran occasionally uses a brace as an assistive device. The examiner explained that the Veteran's disability resulted in a functional impact, causing the Veteran to have less mobility with prolonged walking, standing, and climbing. The examiner also noted that during passive range of motion testing, there was objective evidence of pain on motion, and during non-weight bearing there was no objective evidence of pain on motion. An addendum from July 2020, by the June 2019 VA examiner, explained that weight bearing and nonweight-bearing range of motion would be consistent with the Veteran's initial range of motion, except after repetitive use. After repetitive use, the range of motion would be consistent with the range of motion established during the examination for after repetitive use. However, the examiner also noted that there was no pain on passive range of motion, which is inconsistent with the June 2019 VA examination. Another addendum from August 2021, by the June 2019 VA examiner, explained that during the examination the examiner noted pain with passive motion but no pain with nonweight-bearing. However, as nonweight-bearing still involves voluntary movement of the ankle by the Veteran, it is at least likely as not that the Veteran would have exhibited pain on nonweight-bearing as passive and nonweight-bearing are similar. The examiner did note pain in both dorsiflexion and plantar flexion on initial range of motion which is actually a nonweight-bearing movement. Therefore, for all parameters including passive, active weight bearing, and active nonweight-bearing, pain would be exhibited at the limits of range of motion for dorsiflexion and plantar flexion. The Board finds that the June 2019 VA examiner's examination and the addendum opinions should be afforded a decreased probative value. The Board finds that these examinations are inconsistent with each other, and the examiner responded to the Board's remands with inadequate responses. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The evidence of record establishes that during the August 2014 VA examination the Veteran's right ankle disability was manifested by decreased range of motion due to pain. The examiner noted that the right ankle disability also caused functional impairment resulting in less movement than normal and pain on movement. The Board infers this notation to mean that the Veteran's baseline limitation of motion, which had an initial range of motion indicating abnormal right ankle dorsiflexion of zero to 15 degrees and plantar flexion of zero to 30 degrees, are additionally impacted by an uncertain degree. Giving the Veteran the benefit of the doubt, based on a review of the medical evidence, the Board finds that the Veteran's right ankle disability more closely approximated a marked impairment to limitation of motion during the period on appeal. The Board notes that a 20 percent disability rating represents the highest available rating based on limitation of motion under DC 5271. Therefore, as of January 30, 2014, the Veteran is in receipt of the highest rating available under this diagnostic code. The Board has also considered ratings under other diagnostic codes. The Board notes that disabilities of the ankle can also be rated based on limitation of the affected joint under several diagnostic codes. Under DC 5270, a 20 percent rating is warranted when the ankle is ankylosed in plantar flexion at less than 30 degrees. A 30 percent rating is warranted when the ankle is ankylosed in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. A 40 percent rating is warranted when the ankle is ankylosed in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, DC 5270. Under DC 5272, a 10 percent rating is warranted when there is ankylosis of the subastragalar or tarsal joint in good weight-bearing position. A 20 percent rating is warranted when there is ankylosis of the subastragalar or tarsal joint in poor weight-bearing position. 38 C.F.R. § 4.71a, DC 5272. A 20 percent rating is warranted for an astragalectomy under DC 5274. 38 C.F.R. § 4.71a, DC 5274. The Board notes that at no time during either period on appeal has the Veteran's right ankle disability been manifested by ankylosis. Therefore, DC 5270 and 5272 are not for application. Additionally, the record does not show that the Veteran underwent an astragalectomy; therefore, DC 5274 is not for application. Under DC 5273, malunion of the os calcis or astragalus warrants a 10 percent rating for moderate deformity and a 20 percent rating is warranted for marked deformity. 38 C.F.R. § 4.71a, DC 5273. The Board notes that at no time during either period on appeal has the Veteran's right ankle disability been manifested by malunion of the os calcis or astragalus or a marked deformity. Therefore, DC 5273 is not applicable. Lastly, the Board has considered assigning higher disability ratings pursuant to 38 C.F.R. § 4.40 and 4.45 during both periods on appeal. The Board acknowledges the Veteran's reported complaints of pain and painful motion. However, the Board finds that the rating criteria are intended to take into account functional limitations and that painful motion is already contemplated by the currently assigned disability ratings. Therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45, could not provide a basis for a higher evaluation. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that in rating limitation of motion outside of the context of DC 5003, painful motion alone may not be deemed limitation of motion). Therefore, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In sum, the Board concludes that a 20 percent disability rating, but not higher, under DC 5271 is warranted as of January 30, 2014. Parenthetically, the Board notes that while there were recent revisions to the diagnostic code applicable to the ankles that more specifically identified the range of motion applicable to ratings of moderate and marked limitation of the ankle, the Board finds that the older classifications are more beneficial to the Veteran, and the Board therefore applied the older criteria in evaluating the subject increased rating claim on appeal. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, Associate 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.