Citation Nr: 21067813 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 15-12 237A DATE: November 5, 2021 ORDER Entitlement to a compensable rating prior to May 8, 2017 for status post fracture of the left ankle is denied. Entitlement to a rating of 10 percent, but no higher, from May 8, 2017 to December 21, 2018, for status post fracture of the left ankle is granted. Entitlement to a rating in excess of 10 percent since December 21, 2018, for status post fracture of the left ankle is denied. FINDINGS OF FACT 1. Prior to May 8, 2017, the Veteran had normal range of motion in his left ankle with no painful motion. 2. Since May 8, 2017, the Veteran reported painful motion in his left ankle, but he had mostly normal range of motion of the left ankle. The Veteran did not have marked limitation to the range of motion of the left ankle, ankylosis of the left ankle, or malunion of any bones in the left ankle. CONCLUSIONS OF LAW 1. The criteria for an assignment of a compensable rating for a service-connected left ankle disability prior to May 8, 2017, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.71a. DC 5271. 2. The criteria for an assignment of a 10 percent rating for a service-connected left ankle disability from May 8, 2017 to December 21, 2018, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.71a. DC 5271. 3. The criteria for an assignment of a rating in excess of 10 percent for a service-connected left ankle disability since December 21, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.71a. DC 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from June 1981 to March 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the Veterans Law Judge (VLJ) Alibrando in November 2018. A transcript of the hearing has been included in the record. The Board remanded the claim in June 2019, and March 2021 for development including a VA examination and records development. The Veteran was afforded a new VA examination in December 2019. In March 2021, the Veteran was granted at 10 percent rating since December 2018. VLJ Alibrando has since left the Board. In September 2021, the Board sent the Veteran a letter informing him of the reassignment of his appeal to another VLJ, and that an optional new Board hearing was available upon request. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. Additionally, the letter informed the Veteran that if he did not respond within 30 days from the date of the letter, the Board would assume the Veteran did not want another hearing and proceed accordingly. The record is absent of the Veteran's response regarding another hearing on this matter. Therefore, the Board will proceed to consider the case on the evidence of record. Increased Rating Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. 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. 1. Entitlement to a compensable rating prior to May 8, 2017 for status post fracture of the left ankle is denied. 2. Entitlement to a rating of 10 percent, but no higher, from May 8, 2017 to December 21, 2018, for status post fracture of the left ankle is granted. 3. Entitlement to a rating in excess of 10 percent since December 21, 2018, for status post fracture of the left ankle is denied. The Veteran filed his claim for an increased rating of his left ankle in November 2011. The Veteran's left ankle disability was rated at 0 percent from March 12, 1983 to December 21, 2018, pursuant to DCs 5299-5271 and at 10 percent disabling since December 21, 2018 pursuant to DC 5271. Under DC 5271 (prior to the regulatory change on February 7, 2021), which is for limited motion of the ankle, a 10 percent rating is applied for moderate limitation to range of motion; and a 20 percent rating is applied for marked limitation to range of motion. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Prior to the regulatory change on February 7, 2021, the terms "marked" and "moderate" were not defined in Diagnostic Code 5271, and the question of whether a particular degree of disability was moderate or marked was ultimately a legal rather than a medical one. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present."). As of February 7, 2021, under the amended regulatory criteria, DC 5271 defined the term moderate as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and the term marked as less than 5 degrees dorsiflexion or less than ten degrees plantar flexion. In this case the Veteran has contended that he is entitled to an increased evaluation for his left ankle arthritis. At the hearing, he explained that his ankle hurt when he used it or if he was on it for a while. He used a brace to give his ankle support. The Board considered whether a compensable rating was warranted prior to December 21, 2018, and whether a rating in excess of 10 percent was warranted thereafter. The Board finds that a compensable rating of 10 percent was supported as early as May 8, 2017, but that a rating in excess of 10 percent was not warranted. In March 2012, the Veteran had a VA examination of the ankle. The examiner completed an Ankle Conditions Disability Benefits Questionnaire. The examiner diagnosed the Veteran with a healed fracture of the left ankle. The Veteran stated that he had no flare-ups and that his ankle had healed without any issues. The left ankle had 45 degrees of plantar flexion and 20 degrees of ankle plantar dorsiflexion. There was no evidence of painful motion and the Veteran did not have any additional limitation in range of motion of the ankle following repetitive use. The Veteran's left ankle had full strength, no laxity, and no ankylosis. He did not use any assistive devices. See VA Examination received March 2012. In April 2013, the Veteran had imaging of his left ankle. The imaging noted that he had degenerative arthritic changes in the ankle. See Medical Treatment Record-Government Facility received January 2019. In May 2017, the Veteran reported pain in his ankle in a pain questionnaire. See Correspondence received May 2017. Then in September 2017, the Veteran had imaging of his left foot due to pain. He had degenerative joint disease of the left ankle. See Medical Treatment Record-Government Facility received January 2019. In December 2018, the Veteran was referred for a left ankle brace. See CAPRI received March 2021. Later that month, he had a kinesiotherapy consult for ankle pain. The Veteran reported increased pain after about an hour at work. See CAPRI received November 2019. At that time, the Veteran had range of motion within normal limits and full strength in his left ankle. However, he had an antalgic gait pattern with a wide uneven stride. He was provided an ankle brace by the VA for support and to decrease pain. Id. In January 2019, the Veteran reported that his ankle was not painful but felt unsteady. He reported the brace he received had helped. On examination, the provider noted that the Veteran had full motion in the ankle with no pain or crepitus. He had mild lateral instability. Id. Then in December 2019, the Veteran had another VA ankle examination. The Veteran reported that he had pain in the ankle after standing for long periods. He wore a brace for support. He reported flare-ups of the left ankle daily when he was on his ankle standing for a long period. His flare-ups were alleviated by rest. He specifically reported he had functional loss after two hours standing. The left ankle had 45 degrees of plantar flexion and 20 degrees of ankle plantar dorsiflexion. The examination found normal range of motion in the left ankle but noted pain on examination but that the pain did not result in or cause functional loss. The examiner found that on repeated use over time and flare-ups the Veteran continued to have normal range of motion in his left ankle. Although the Veteran's range of motion continued to be normal, the examiner noted that the Veteran's functional ability was limited by pain. He had normal strength, no muscle atrophy, no ankylosis, and no instability suspected. The Veteran used a brace for his ankle regularly. See C&P Examination received December 2019. In January 2021, the Veteran had a podiatry examination. He had almost full motion in the left ankle with no pain or crepitus. See CAPRI received March 2021. The Veteran was rated as noncompensable for his left ankle prior to May 8, 2017 because the evidence as a whole supported that he did not have limitation to the range of motion, ankylosis, malunion, or painful motion of the ankle. While he had imaging showing arthritic change, the Veteran did not report any painful motion or flare-ups in his ankle during the March 2012 VA examination. See VA Examination received March 2012. As of May 8, 2017, the Veteran reported pain in his left ankle. See Correspondence received May 2017. Then in September 2017, he had imaging for left foot pain. See Medical Treatment Record-Government Facility received January 2019. The Board noted that the Veteran reported he had pain when he was standing for longer periods and that he had to use a brace. The Veteran's testimony suggested that he did not have ankle pain all the time but instead he had it during activity. The Veteran's testimony supported the ten percent rating as of May 8, 2017. The evidence does not support a compensable rating prior to May 8, 2017, as the evidence generally noted no reduction in range of motion in the ankle and no pain. As of May 8, 2017, and thereafter, the evidence does not support a rating higher than 10 percent. The Veteran was assigned a ten percent rating based on painful range of motion. The Veteran did not have moderate limitations to the range of motion in his left ankle. The evidence suggested that while he had pain with use at times, he continued to have normal range of motion in the ankle. For example, in December 2018, when he was given a left ankle brace by the VA, the Veteran was noted with range of motion within normal limits even though he had an antalgic gait pattern. See CAPRI received November 2019. Then in January 2019, although the Veteran was using a brace, he had full motion in the left ankle noted again. Id. Then at the December 2019 VA examination, the Veteran continued to have normal range of motion in the left ankle. See C&P Examination received December 2019. And in January 2021, the Veteran had a podiatry examination, and he had almost full motion in the left ankle with no pain or crepitus. See CAPRI received March 2021. In order to warrant a rating of 20 percent or marked limitation to range of motion in the left ankle, the Veteran would need to have less than five degrees dorsiflexion or less than 10 degrees plantar flexion. While the Veteran has reported pain and limitation due to pain, his range of motion in the left ankle has generally been almost full. Also, none of the evidence of record supports that the Veteran has any ankylosis in the left ankle or that the Veteran has a marked deformity in the ankle due to malunion. Id. There is no evidence that the Veteran's limitations due to pain in the left ankle would be equivalent to ankylosis. The Board considered the Veteran's range of motion on flare-ups or repetitive use when making the finding that the Veteran had a 10 percent rating to his left ankle. The Board also considered whether any other Diagnostic Codes would be applicable, but no other applicable Diagnostic Codes would result in the Veteran receiving an increase in his ankle rating. Therefore, considering the evidence of record, the Board finds that a higher rating is not supported. In conclusion, looking at the record as a whole, the Veteran's service-connected left ankle disability was properly evaluated under DC 5271 at 10 percent from May 8, 2017 to December 21, 2018. As a preponderance of the probative, credible evidence of record weighs against a finding of a compensable rating prior to May 8, 2017 and weighs against a rating of higher than 10 percent since December 21, 2018 for the Veteran's left ankle disability, the benefit of the doubt doctrine does not apply, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.