Citation Nr: 21067012 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-30 417 DATE: November 3, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent disability for service-connected right tibiofibular ligament strain prior to May 29, 2014, and in excess of 20 percent thereafter is denied. FINDING OF FACT 1. Prior to May 29, 2014, the Veteran's right tibiofibular ligament strain was manifested by moderate limitation of motion due to pain and functional impairment; it was not manifested by marked limitation of motion, dorsiflexion of less than 5 degrees, plantar flexion of less than 10 degrees or symptomatology of such severity as to be functionally equivalent to ankylosis. 2. As of May 29, 2014, the Veteran's right tibiofibular ligament strain has been manifested by marked limitation of motion due to pain and functional impairment; it was not manifested by marked limitation of motion, dorsiflexion of less than 5 degrees, plantar flexion of less than 10 degrees or symptomatology of such severity as to be functionally equivalent to ankylosis. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an initial evaluation in excess of 10 percent disability for service-connected right tibiofibular ligament strain, prior to May 29, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5271. 2. The criteria for establishing entitlement to an evaluation in excess of 20 percent for a service-connected right tibiofibular ligament strain, as of May 29, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service under honorable conditions with the United States Army from June 2010 to March 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2012 rating decision issued by a Regional Office (RO) of the Department of Veteran's Affairs (VA), in which the Veteran was granted a 20 percent disability rating for his right tibiofibular ligament strain. The Veteran filed a VA Form 9 in August 2014 and requested a hearing before the Board. The Veteran appeared before the undersigned Veterans' Law Judge (VLJ) for a hearing in July 2017. This matter was previously remanded in April 2018 and July 2020 for further development. In August 2021, the RO issued a supplemental statement of the case (SSOC). This matter is now properly before the Board. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's schedule for rating disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disabilities of the ankle are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5270-74. The Veteran's right ankle disability is presently rated under Diagnostic Code 5271. Under this code, prior to February 7, 2021, a 10 percent evaluation is warranted for "moderate" limitation of motion and a 20 percent evaluation is warranted for "marked" limitation of motion. The Board is cognizant that Diagnostic Code 5271 itself did not provide for ratings pursuant to range of motion measurements, unlike diagnostic codes for other physical disabilities such as the knee or the back. 38 C.F.R. §d notes that VA's M21-1 Adjudication Procedures Manual provides guidance for its examiners, stating that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. However, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs. The Board is not bound by Department manuals, circulars or similar administrative issues, to include the M21-1. 38 C.F.R. § 20.105 (2019) (formerly 38 C.F.R. § 19.5 in 2018 and earlier). 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. Accordingly, "moderate" limited motion is now defined as "less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion" and "marked" limited motion is now defined as "less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion." 37 C.F.R. § 4.71a, Diagnostic Code 5271 (2021). 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 will consider 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. The criteria that is more favorable to the Veteran will be applied. The Board notes that normal range of motion for the ankle on dorsiflexion is to 20 degrees and to 45 degrees on plantar flexion. See 38 C.F.R. § 4.71a, Plate II. Entitlement to an evaluation in excess of 10 percent for a service-connected right tibiofibular ligament strain prior to May 29, 2014, and an evaluation in excess of 20 percent as of May 29, 2014 During the July 2017 Hearing before the undersigned VLJ, the Veteran contended that he was entitled to a higher rating of 20 percent for his service-connected right tibiofibular ligament strain prior to May 29, 2014 and a rating in excess of 20 percent for this disability as of May 29, 2014. However, as outlined below, the preponderance of the evidence of record demonstrates that a higher rating is not warranted for any time period on appeal. In a November 2012 medical examination, the physician noted that the Veteran had full range of motion upon examination and the physician noted that the Veteran did not have any abnormality in the right ankle aside from mild tenderness present to palpation over the right anterior talofibular ligament. In a January 2013 medical note, the Veteran's physician noted that the Veteran still had pain and that his ankle felt very unstable even with all the strengthening and balance exercises. The Veteran had an X-ray of his right ankle done in September 2013, and the impression noted on the Veteran's private treatment record dated September 2013 indicated that the Veteran's accessory ossification center was stable from April 28, 2010. In a February 2014 medical note, the Veteran reported that he suffered an ankle sprain in September 2013. The Board notes that the Veteran did communicate with his physician and seek out treatment on September 1, 2013. The Veteran suffered from increased swelling and pain starting September 2013. The Board finds that the Veteran's first noted increase in pain and range of motion was not measured until the Veteran's May 29, 2014 VA examination. There is no other evidence within the record that shows an increase in the severity of the Veteran's disability. While increased pain and swelling is noted starting September 2013, the Veteran's records do not note an increase in limited motion prior to May 29, 2014. There is also no evidence of ankylosis within the Veteran's record. In August 2021, the Veteran was afforded a new VA examination. The August 2021 VA examiner noted that the Veteran experienced flare ups 1-2 times per month which lasted about 1-2 days with characteristics of throbbing pain and occasional sharp pain. The Veteran's right ankle range of motion without repeated testing was 40 degrees plantar flexion endpoint and dorsiflexion endpoint 15 degrees. The Veteran's right ankle range of motion was measured at 35 degrees for the plantar flexion and 10 degrees for dorsiflexion endpoint during a flare up. The examiner noted that the Veteran's disability does cause functional impact which is that the Veteran's physical activity is limited and he is unable to do things with his child. Furthermore, the Veteran feels like he is on a rocky surface when walking. Diagnostic Code 5271 provides that ankle with marked limited motion is described as motion less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion is rated at 20 percent disabling. Moderate limitation of motion is defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion is rated as 10 percent disabling. Here, the evidence of record and pursuant to the Veteran's August 2021 VA examination, the Veteran's measured range of motion currently does not meet the 20 percent disabling granted. However, viewing the evidence in the light most favorable to the Veteran, the Board finds that a reduction in the Veteran's disability rating is not in the best interest of the Veteran. The Board has also considered the Veteran's disability under Diagnostic Code 5271 as it existed prior to the February 7, 2021 rating schedule change. Prior to the February 7, 2021 rating schedule change Diagnostic Code 5271 provided that a marked limited range of motion of the ankle was rated as 20 percent disabling and a moderate limited range of motion of the ankle was rated as 10 percent disabling. The Board finds that the August 2021 VA examiner noted that the severity for the Veteran's range of motion during flare ups was moderate. The Board finds that the rating under Diagnostic Code 5271 prior to February 7, 2021, and after February 7, 2021, yield the same result. The Board has also considered the Veteran's disability under Diagnostic Code 5270. Diagnostic Code 5270 has remained unchanged since the rating schedule change effective February 7, 2021. Diagnostic Code 5270 provides that ankylosis of the ankle in plantar flexion, less than 30 degrees is rated as 20 percent disabling. Ankylosis in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 and 10 degrees is rated as 30 percent disabling. Ankylosis in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity is rated at 40 percent disabling. The Board finds that there is no evidence of ankylosis in the Veteran's ankle and therefore the Veteran is not entitled to a disability rating under Diagnostic Code 5270. In reaching the above conclusion regarding ankylosis, the Board is cognizant of the finding of Chavis v. McDonough, 34 Vet. App. 1 (2021). However, the medical and lay evidence of record fails to reflect that the Veteran's right ankle symptoms even during periods of flare-up result in disability that is functionally equivalent to ankylosis. The Veteran has consistently maintained some degree of motion in the ankle despite his pain. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." Colayong v. West, 12 Vet. App. 524 (citing Dorland's Illustrated Medical Dictionary (28th ed. 1994). As such, the Board finds that the Veteran's right ankle disability does not result in functional impairment equivalent to that experienced with ankylosis. The Board has considered the Veteran under all possible Diagnostic Codes and finds that the Veteran is most appropriately rated under Diagnostic Code 5271. The Board recognizes that the Veteran believes he is entitled to increased disability evaluations for the periods on appeal. However, at no time has the Veteran provided medical or lay evidence to demonstrate that his overall disability picture warrants a higher rating either before or after May 29, 2014. In reaching this conclusion, the Board has considered whether additional range-of-motion loss or functional impairment exists due to any weakened movement, excess fatigability, incoordination, flare-ups or pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. However, as discussed in the preceding paragraphs, the evidence fails to demonstrate the presence of such symptomatology in the present case. The Veteran was asked to submit additional private medical records that he claimed he had in his possession during the hearing. The Veteran failed to submit additional private medical records. The RO did send the Veteran a request and for a release for medical records in a subsequent development letter dated February 2019. The letter did not come back undeliverable. The Veteran failed to respond to the RO's request. The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. The Veteran did not otherwise provide the evidence necessary to support his claim, despite bearing the burden to substantiate each element of his claim. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) "When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record". 38 C.F.R. § 3.655. CONTINUED ON NEXT PAGE The Board has carefully and sympathetically reviewed the Veteran's claim. However, the preponderance of the evidence of record demonstrates that a rating in excess of 10 percent for a service-connected right tibiofibular ligament strain prior to May 29, 2014, and entitlement to a rating in excess of 20 percent as of May 29, 2014, is not warranted. As such, these claims are denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.