Citation Nr: 21067419 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 15-37 938 DATE: November 4, 2021 ORDER Entitlement to an increased rating for status post left ankle fracture with degenerative joint disease and instability, currently evaluated as 20 percent disabling, is denied. FINDING OF FACT The Veteran is in receipt of the maximum schedular evaluation available for limited motion of the left ankle. He has not been shown to have ankylosis of the left ankle or functional loss consistent with that contemplated by ankylosis. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for status post left ankle fracture with degenerative joint disease and instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 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 April 1973 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision. In July 2018, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A transcript of the proceeding has been associated with the claims file. The Board remanded the case for further development in January 2019. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Even when the background factors listed in 38 C.F.R. §§ 4.40, 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which the 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."). The Veteran's service-connected status post left ankle fracture with degenerative joint disease and slight instability is currently assigned a 20 percent evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271. During the pendency of this appeal, VA issued revised schedular criteria for rating musculoskeletal disabilities, including limited motion of the ankle under 38 C.F.R. § 4.71a, Diagnostic Code 5271, which became effective February 7, 2021. However, consideration under the revised schedular criteria should not be undertaken before such criteria became effective. The effective date rule contained in 38 U.S.C. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. That is, for any date prior to February 7, 2021, neither the RO nor the Board could apply the revised rating schedule. Where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. As such, VA must consider the claims pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Under the old version of Diagnostic Code 5271, a 10 percent evaluation is warranted for moderate limitation of motion, and a 20 percent evaluation is warranted for marked limitation of motion. For VA compensation purposes, normal range of motion for the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. The words "moderate" and "marked" are not defined in the VA rating schedule. Under the revised rating criteria, a 10 percent rating is assigned 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.). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to an increased evaluation for his service-connected status post left ankle fracture with degenerative joint disease and slight instability. The Veteran is already in receipt of the maximum schedular evaluation available for limitation of motion under Diagnostic Code 5271. Thus, an increased evaluation cannot be granted under that diagnostic code. In addition, the Veteran has not been shown to have ankylosis of the left ankle. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). The range of motion findings during the January 2012, July 2012, April 2015, or April 2019 VA examinations do not demonstrate that the Veteran's left ankle is fixed or immobile. Moreover, the VA examiners specifically indicated that he did not have ankylosis. The Board has also considered other potentially applicable diagnostic codes to determine whether the Veteran may be entitled to a higher or separate evaluation. However, the Veteran has not been shown to have malunion of the os calcis or astragalus, or evidence of an astragalectomy in the left ankle. 38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5373, or 5274. There is simply no evidence of such manifestations. In fact, the January 2012, July 2012, April 2015, and April 2019 VA examiners indicated that he did not have shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis), or talus (astragalus) and never had a talectomy (astragalectomy). The Board further notes that a 20 percent evaluation is the maximum schedular evaluation available under these other diagnostic codes. In addition, the Board notes that the Veteran has been assigned a 20 percent rating for his left ankle disability which contemplates painful motion. There is no x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. In addition, the 10 percent evaluation for arthritis based on x-ray findings cannot be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Thus, a separate or higher evaluation is not warranted under Diagnostic Codes 5003 and 5010. In reaching this determination, the Board acknowledges that the revised rating criteria under Diagnostic Code 5010 provide that post-traumatic arthritis should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. However, as previously discussed, a separate or higher rating is not warranted for limitation of motion, and the evidence does not show that the Veteran has dislocation or instability for which a higher rating is available. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's service-connected left ankle disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the currently assigned 20 percent evaluation, and no higher. In this regard, the Board observes that the Veteran has complained of pain, weakness, instability, and decreased mobility requiring the use of a cane. However, the effect of such symptoms and the functional impairment are contemplated in the assigned evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an evaluation in excess of the 20 percent evaluation currently assigned. During a January 2012 VA examination, the Veteran reported having daily flare-ups that cause him to stop, sit, rest, and elevate his ankle, but it was noted that he did not require bedrest or seek medical attention. The examiner noted that painful motion began at 5 degrees of plantar flexion and plantar dorsiflexion. The Veteran was able to perform repetitive-use testing, and although he had less movement than usual, pain on movement, swelling, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing, there was no additional loss in his range of motion upon such testing. The examiner also indicated that the Veteran did not have functional impairment such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. A July 2012 VA examiner also noted the Veteran's report of daily flare-ups during which he must stop activity and sit to elevate and rest the left ankle, but indicated that he does not require bedrest or medical treatment. The examiner found that painful motion began at 5 degrees of plantar dorsiflexion and at zero degrees of plantar flexion. The Veteran was again able to perform repetitive-use testing, and he still had plantar flexion to 25 degrees and plantar dorsiflexion to 5 degrees after three repetitions. Although the Veteran had less movement than normal, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing, the examiner found that he did not have any additional limitation in range of motion of the left ankle following repetitive-use testing. He also stated that the Veteran did not have functional impairment such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Moreover, the Veteran denied having flare-ups during an April 2015 VA examination. The examiner also found that he had a normal range of motion of the left ankle, and following repetitive-use testing, there was no additional loss of function or range of motion after three repetitions. The examiner later noted in the report that the Veteran did have pain, weakness, fatigability or incoordination that significantly limits functional ability with repeated use over a period of time, but also found that he would still have plantar flexion to 15 degrees. It was further noted that the Veteran did not have functional impairment such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. In addition, the Veteran denied having flare-ups during an April 2019 VA examination. The examiner indicated that he had pain upon examination, but that it does not result in or cause functional loss. The Veteran was also able to perform repetitive-use testing without additional loss of function or range of motion after three repetitions, and the examiner found that pain, weakness, fatigability, or incoordination would not significantly limit his functional ability with repeated use over a period of time. Passive range of motion testing still revealed dorsiflexion to 5 degrees and plantar flexion to 15 degrees, and the Veteran retained 3 degrees of dorsiflexion and 10 degrees of plantar flexion upon nonweight-bearing testing. The examiner explained that there is no standard for weight-bearing range of motion testing; therefore, it was not performed. It was further noted that there was no functional impairment of an extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. Thus, even taking into account the Veteran's symptoms, including pain, as well as flare-up and repetitive-use, the evidence does not show that he more nearly approximates the criteria for a higher evaluation. Indeed, the Veteran is still not shown to have functional loss or impairment approximating ankylosis of the left ankle. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). Accordingly, the Board concludes that a higher evaluation is not warranted for the Veteran's service-connected left ankle disability under DeLuca. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.