Citation Nr: 21067415 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-52 217 DATE: November 4, 2021 ORDER Entitlement to a rating in excess of 10 percent for right ankle sprain with instability is denied. FINDING OF FACT The Veteran's right ankle sprain is manifested by no more than moderate limited motion of the ankle. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right ankle sprain with instability have not been met. 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 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. This matter was previously remanded by the Board in May 2020. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Rating Criteria Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran's current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 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. VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to a rating in excess of 10 percent for right ankle sprain with instability The Veteran contends that he is entitled to a higher rating for her service-connected right ankle disability. He filed a claim for an increased rating on May 12, 2015. At the August 2019 Board hearing, the Veteran testified that his disability causes pain and reduced range of motion. The Veteran's right ankle sprain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id. While the schedule of ratings does not provide information as to what manifestations constitute "moderate" or "marked" limitation of ankle motion, guidance can be found in the VA Adjudication Procedures Manual (M21-1). The M21-1 states 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. See M21-1, III.iv.4.A.6.m. The M21-1 is not binding on the Board. However, the Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257 (2018). The Board finds that the M21-1 may be relied upon as a factor based on VA's proposed revisions to Diagnostic Code 5271 made in February 2003, August 2017, and, as noted, in February 2021. See 68 Fed. Reg. 6998 (Feb. 11, 2003); 82 Fed. Reg. 35719 (Aug. 1, 2017); 85 Fed. Reg. 230 (Feb. 7. 2021). Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked 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. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right ankle sprain with instability based on the rating criteria in place both prior to and since February 7, 2021. During the period on appeal, the Veteran was afforded VA examinations in July 2015 and August 2021. During the July 2015 examination, the Veteran reported experiencing flare-ups of the right ankle that cause sharp, stabbing pain that occur twice each week lasting for hours throughout the day. The Veteran indicated that such flare-ups were aggravated by prolonged standing, driving, riding in a car, and accentuation in dorsiflexion position. Initial range of motion testing revealed right ankle dorsiflexion to 14 degrees, and plantar flexion to 38 degrees. Evidence of pain was noted on examination with both ranges of motion, but it did not cause additional functional loss. There was no evidence of pain with weight bearing, but the examiner noted there was evidence of localized tenderness or pain on palpation of the joint. Right ankle muscle strength testing was normal, and there was no ankylosis. Although the examiner noted that there was right ankle instability, there was not laxity compared with the left ankle during anterior drawer and talar tilt testing. The examiner did not provide an estimate of additional functional loss or of range of motion during flare-ups, as he was unable to make such a determination without mere speculation. At the August 2021 VA examination, the Veteran reported that his right ankle pain tends to worsen as the day progresses from morning to night, causing him to have to get off of his ankle by the end of the day. He stated he takes four aspirin, a glass of wine, and cannabidiol oil as daily treatment. The Veteran again reported experiencing flare-ups that cause additional pain and occur once each week lasting 12 hours. He explained that his flare-ups are precipitated by weight bearing for more than five hours at a time. During active and passive range of motion testing, the Veteran demonstrated dorsiflexion to 20 degrees, and plantar flexion to 30 degrees with evidence of pain at 25 degrees. The Veteran was also able to perform repetitive use testing with three repetitions without additional loss of function or range of motion. The examiner estimated that following repeated use over time, the Veteran would not experience reduced range of motion. However, the examiner estimated that during flare-ups, the Veteran would have only 25 degrees of plantar flexion. The Veteran was noted to have a history of instability on uneven ground, but anterior drawer and talar tilt testing was normal. There was no muscle atrophy or ankylosis of the right ankle. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and flare-ups. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating marked limited motion under both the old and the revised rating criteria. Under the old and revised Diagnostic Code 5271, marked limitation of motion to warrant a 20 percent rating is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See M21-1, III.iv.4.A.6.m; 38 C.F.R. § 4.71a, Diagnostic Code 5271. At worst, the Veteran demonstrated dorsiflexion to 14 degrees, and plantar flexion to 30 degrees. Even during flare-ups, the Veteran was estimated to maintain 25 degrees of plantar flexion. Further, instability testing was normal. A review of the treatment notes of record, as well as the Veteran's hearing testimony, also fail to show the severity of the Veteran's right ankle disability is worse than what is reflected in the VA examination reports to warrant a rating in excess of 10 percent. (Continued on the next page) The Board has considered whether any other Diagnostic Codes 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 Diagnostic Code. See 38 C.F.R. § 4.71a. At no point has the Veteran's right ankle disability been manifested by ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or an astragalectomy. Therefore, Diagnostic Codes 5270, 5272, 5273, and 5274 are not for application. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for right ankle sprain with instability. In denying such a 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. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.